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Below are 3 different questions. Answer all 3. These are short answer questions, meaning it is possible to answer in a page, 1.5, but maximum of two. A sensible answer—one that spots the issue(s), explains the possible answers from course material, takes a side on a topic of debate, and makes an argument why that side is correct—should be possible in this range. Those of you who feel prompted to write more, I understand the impulse, but know that you really need not do so to convince me you know the topic.
Format:
Please turn in a document, much like your papers so far in 11 / 12 pt font, double spaced, in pdf or word format, spell-checked, and reviewed for obvious grammar mistakes. No specific citation format is required but I do want you to tell me where you are getting your answers from. Eg. “(Fuller)” or “(Calvi and Coleman Ch 2).” If it is lecture, “(Lecture 1 wk 8, Slides 10-12”). Tell me who/what you have read that supports your point. No outside material is necessary. Class material alone (Calvi and Coleman, Course-pack, Lecture power-points) is sufficient
Question 1—Substantive Due Process Question:
Look back at the majority’s opinion in Obergefell and the excerpts of the dissent that were assigned as reading. Then look at the assigned pages in Dobbs. Both of these are posted as pdfs in Canvas. The concurrence of Justice Thomas in Dobbs was offered as an optional skim if time allowed for you to read it (this remains true, although you may find it supportive of what you intend to write in response here and is appropriate to include if you choose. But you will not lose points if you do not use the supplemental material. It is simply there for you if it is critical to points you want to make.) Compare the arguments concerning fundamental liberties arising via substantive due process in the majority in Obergefell with the Dobbs dissent of Justices Breyer, Sotomayor, and Kagan. Or in the case of the dissent in Obergefell and the majority opinion (Alito) in Dobbs, compare how those liberties fail to arise or at least how substantive due process is an inappropriate vehicle to find such liberties. Do you agree with one view more than the other, and why? You may find referring briefly to other substantive due process cases like Bowers, Lawrence, or Griswold to be helpful to support your view.
Question 2—Natural Law / Positivism / realism:
We have recently had readings that refocused on natural law and positivism. And we touched on legal realism. Together these were a study of how judges employ the law in making decisions and how those decisions can themselves be studied and analyzed according to the precepts of each position. Dworkin, Fuller, and St. Thomas Aquinas can be said to be natural law theorists, broadly speaking. Hart is a positivist. While I made the readings optional—and they still are—in lecture I helped you see how both Hutcheson (in course pack p. 58 just after Holmes) and Holmes are good examples of the beginnings of legal realism.
Hopefully after reading Dworkin, Hart, and (earlier in the term) Fuller on natural law and positivism you see some distinct differences in their approaches to the question: what is law. In the most recent material you read at the end of the semester on the art of judging, Dworkin holds that law is the product of the interpretation that most faithfully sums up legal texts, legal principles and deeply rooted community values. While answering the question below, consider whether there could be a way Dworkin on judging (not the moral reading/this is a separate issue and topic on syllabus) could be read as other than traditional naturalism and how he might be slightly different even than Fuller on natural law (refer to week 2 for Fuller).
Hart, of course, comes to us from the positivism tradition of what is law. Law in this view is, in a phrase, a sociological study. Of course this over-simplifies Hart and hopefully you can see this from the readings and lecture.
I made reading Holmes and Hutcheson optional, and that remains true. I did discuss them in a few slides in lecture, however, and you can use that material to help you consider how they are different from Dworkin, Fuller and Hart. In the short snippets we have of Oliver Wendel Holmes and Joseph Hutchinson, Holmes discusses the early stages of legal realism. He urges that judges decisions are from matters of experience and consists of patterns of decisions rather than rules dictating outcomes.
Here is the question: Assume you got elected to the MI Supreme Court. Which view do you think you would lean toward most often? Explain why. The good answer here (in around 1-2 pages) involves some significant analysis of why you believe one view versus another has the better explanation for what is law.
Question 3—Dworkin on the constitutional reading/ Dr. King:
Dworkin’s piece, “The Moral Reading and the Majoritarian Premise,” found on Canvas in the module for week 13, gives us a reading of the constitution and how democracy works such that the majority rules most of the time—not because it is the majority and that is what democracy means—but because constitutionalism provides this result most often. Majorities rule because of constitutionalism, not because there is something inherently magical about majorities themselves within democracies. Note how fundamental fairness works in his calculation of the balance between majority and minority within constitutionalism. (Yes a significant portion of the article then refers to how mostly unelected and relatively unaccountable judges fit within a democratic system even if they seem anti-democratic. But this is asking you to focus on Dworkins’ broader points concerning democracy overall.)
Here is the question: Now analyze how Dworkin’s read fits—or perhaps clashes—with views Dr. King expresses in his “Letter from a Birmingham Jail.” This will require you to first lay out the argument Dworkin makes and then provide your view of what Dr. King argues concerning the minority view, the view of a historically subjugated segment of society. Finally you should analyze whether and how these two views of these two authors fit with one another—or perhaps for you they clash more than they fit. Explain which you believe—mesh or clash—better describes the fit and why.
I will attach the final exam question paper, with all the PowerPoints and reading you will need to use to answer those questions.
no outside resources are needed just use what I sent you.
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