Constitutional Interpretation (Berman)
Faculty
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| Mitchell Berman Leon Meltzer Professor of Law and Professor of Philosophy mitchberman@law.upenn.edu |
Additional Information
Skills Training
Other Professional Skills: Careful analysis of scholarly writing; effective oral communication on complex and abstract topics.
Grading
100% Participation,
Other (I will permit a small number of absences. I might impose a 1-page writing obligation for missed classes. To be discussed.)
No
Class meets in person.
Meeting Times/Location
W 12:00PM - 12:59PM
Tanenbaum Hall 320
Category
Seminar
Credits
1.0
For many years, I have taught a 3-credit seminar on theories of constitutional interpretation. Due to other commitments, I can't teach that seminar this year or next. This 1-credit seminar is the slender alternative. It takes on the same subject matter via a different vehicle: the working manuscript of my book-in-progress with the somewhat grandiose title "To Say What the Law Is": the Constitution, the Supreme Court, and the Nature of Law.
The project of the seminar is to walk through the manuscript, one chapter each week (but possibly two chapters in one of the weeks). The book introduces, develops, and defends my own theory of constitutional interpretation, what I call organic pluralism. So a good portion of the seminar will involve trying to understand and critically engage organic pluralism. (It's a nonoriginalist and positivist theory, if those captions mean anything to you; no worries if they don't.) But large portions of the book, and thus the seminar, are devoted to setting the table for my theory by carefully putting forth the questions that demand theoretical answers and canvassing the existing literature to show that we don't yet have what we need. So I believe and hope that the book is a good vehicle for introducing students to the most important strands and thinkers in the history of American constitutional theory and to the currently most vibrant schools. Some of the theorists we'll encounter include Story, Douglass, Thayer, Wechsler, Bork, Dworkin, Ely, Scalia and public meaning originalism, Bobbitt, Fallon, Vermeule, and Baude & Sachs.
Also, the final chapters put my theory to work by applying them to actual cases. So not only will seminar students be getting a look at a cutting-edge theory in development and a survey of the existing theoretical landscape, they'll also be getting a little constitutional law.
The seminar meets for 9 or 10 Wednesdays at noon. There is no writing component. Your only job is to read the assigned chapter and come to our weekly meeting prepared to discuss it. For that you get 1 ungraded credit.
I might be amenable to adding a modest writing component for a second credit (still ungraded). But no promises about that; it will probably depend on how many students would want that option. I will try to cajole a couple of colleagues into joining us, at least occasionally. No promises about that either.
Constitutional Law Learning outcomes: Demonstrate a core understanding of constitutional law; Perform legal analysis in the context of constitutional law; Communicate effectively on topics related to constitutional law; Demonstrate an understanding of constitutional law affects other areas of law.
Courts and the Judicial System Learning outcomes: Demonstrate a core understanding of both substantive and procedural issues in the operation of our legal system; Perform legal analysis in the context of procedural issues and the judicial process; Communicate effectively on topics related to procedure and the judicial process; Demonstrate an understanding of how procedural issues and the judicial process affect all other area of our legal system.
Perspectives on the Law Learning outcomes: Demonstrate an understanding of how the law affects, and is affected by, the individual course topic; Perform legal analysis in the context of the individual course topic; Communicate effectively on the legal and other aspects of the individual course topic; Demonstrate the ability to use other disciplines to analyze legal issues relevant to the individual course topic, including economics, philosophy, and sociology, as appropriate.