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What Perplexes Lawyers and Why (Katz)
Fall 2019   LAW 917-001  

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Meeting Times/Location
R 4:30PM - 6:30PM
Golkin Hall 238

Faculty
Leo Katz

Frank Carano Professor of Law

lkatz@law.upenn.edu
Additional Information

Skills Training
Expository Writing
Other Professional Skills:

Grading
50% Participation,
50% Paper

Satisfies Senior Writing Requirement

No

Category
Seminar

Credits
3.0

What Perplexes Lawyers and Why—Indeterminacy, Irrationality, and Immorality in the Law

The seminar takes up a variety of questions that hover over all of legal practice, most of which are usually brushed under the rug because answers seem elusive and hardly indispensable for being a perfectly good lawyer. That does not, however, mean that they are not interesting to explore.

The questions come in three clusters, the first of which is indeterminacy. When uncertain as to how to resolve a doctrinal issue, as courts are wont to be, exactly what are they supposed to do? In other words, how should they decide when they can’t really decide? Does what they actually do make sense? It is very different from what they do when they encounter a question of factual uncertainty, which they handily dispose of by invoking burden of proof rules. How come? This question turns out to be intimately related to one that has recently come to preoccupy moral philosophers: how does one deal with a situation of moral uncertainty? What do we do when we don’t know whether it is morally acceptable to eat meat? Or to have an abortion in the seventh month? Or to spend one’s income on luxuries rather than charity? Another question in the indeterminacy cluster is in what way a judge who is faced with a close question is superior to a randomizing device. In other words, what exactly is the value added of a judge?

The second cluster has to do with irrationality: Must law strive to be logically consistent? What to make of the fact that usually it isn’t? Is that necessarily a defect? If it is, is it fixable? Related to that is the puzzling ubiquity of situations in which all parties to a conflict seem to be in the right, particularly common under international law. Does that make sense? Can there be genuine conflicts of rights? And if so, how does the law, whose purpose it is to avoid conflicts, tolerate that?

The third cluster relates to immorality. It deals, among other things, with what is sometimes called the problem of transitional justice: Can it be illegal to follow the law? The question arises most conspicuously when one legal regime (e.g., the Third Reich, Communism, the Argentine junta) collapses and its officials and collaborating citizenry are called to account by the new regime, but also less conspicuously, when a continuing legal regime, like the American one, happens to undergo a lot of internal change over time. This cluster also includes the more familiar problem of role morality: can it be immoral to be too good a lawyer? Is it morally permissible to do at the behest of a client what would be immoral to do in one’s own behalf?

Readings will come from articles and books and the occasional case. Several ultra-short papers will be required, 500-700 words each, roughly on an every-other-week basis.

Course Concentrations

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.

Administrative and Regulatory Law
Learning outcomes: Demonstrate a core understanding of administrative and regulatory law and the administrative process, including the role of statutory authorization and work of administrative agencies; Perform legal analysis in the context of administrative and regulatory law; Communicate effectively on topics related to administrative and regulatory law; Demonstrate an understanding of the role administrative and regulatory law play in our legal system and in society as a whole.