General Objectives

The Politics of Legal Policy seminar will focus on several controversial issues involving courts and/or the types of issues they deal with. The goal of the course is to underestand how politics plays out in dealing with these kinds of issues. Most topics will be dealt with over two sessions of the seminar with the first session examining the issue from a policy perspective and the second session examining the issue from the perspective of differing political interests. Some of the political interests sessions will involve students in the seminar debating the issue drawing upon the policy discussions from the previous week as well as their own research into the issue; other sessions will involve a guest speaker. Students will be asked to indicate the issues they would like to debate, but positions in the debate will be determined by a coin flip.

In addition to the five topics pre-selected (access to legal services for noncriminal matters, tort reform generally, medical malpractice reform, sexual predators, the use of scientific evidence), students will be required to prepare a policy brief on another legal policy issue, and then to present a brief discussion of their brief in class during the last two weeks of the semester. Some possible topics for the brief are:

• Eyewitness testimony
• Divorce (no-fault, custody, support, maintenance)
• Nontraditional families & gay rights
• Sentencing reform (disparity vs. discretion, mandatory sentencing, parole, restorative justice )
• Death penalty
• Punitive damages
• Abolishing/limiting the civil jury
• Drug laws (decriminalization, medical marijuana,
• Domestic violence
• Drunk driving
• Court structure and organization (specialized courts)
• Judicial selection & judicial elections
• Mass torts & class actions
• Bankruptcy
• Civil procedure (discovery, lawyer sanctions, fee shifting)
• Hate crimes (including speech codes)
• Morals offenses (pornography, gambling, prostitution)

Note that this list is meant only to be suggestive. Students should clear with me the topic they plan to pursue.

Requirements

This is a seminar, and as such it depends heavily on students coming to the seminar prepared and ready to discuss. Simply sitting and listening defeats the purpose of the course both from the individual student's perspective and from the collective perspective. The specific requirements for this course (in addition to assigned readings) are:

Active participation in discussion (25%)
Participation in one debate (25%)
Preparation of policy brief on a legal policy issue not among those discussed in class (40%), DUE MONDAY, APRIL 30
Ten to fifteen minute presentation (during last two weeks) of that policy brief. (10%)

The percentages in parentheses indicate the approximate role in the computation of the final grade. Pleasae note that graduate students will be expected to prepare more extensive papers.

Office Hours

Tentatively, my office hours will be Monday 1:15-2:15 and Wednesday 10-11; I am happy to make appointments to meet students at other times that are mutually convenient.

I actually tend to stay logged into the e-mail system whenever I am in my office and much of the time when I am working at home. The result is that I can often respond very quickly to e-mail questions. My e-mail address is HKRITZER@WISC.EDU.

World Wide Web

The electronic syllabus on my web site constitutes a homepage for this course. The electronic version of the syllabus has (or will have) links to lecture outlines, sample exam questions, and other material. When you access those materials, be sure to check the "last revised date" to be sure the material has been updated for the current year. The URL for the page is:

http://www.polisci.wisc.edu/~kritzer/teaching/LegalPolicy/syllabus-2007-Spring.htm

Readings

There are three required books for this course:.

• Tom Baker, The Medical Malpractice Myth (University of Chicago Press, 2005), ISBN 0-226-03648-0
• Eric Janus, Failure to Protect (Cornell University Press, 2006), ISBN: 978-0-8014-4378-7
• William Haltom and Michael McCann, Distorting the Law: Reform Politics, Mass Media, and the Litigation Crisis . (University of Chicago Press, 2004),  ISBN: 0-226-31464-2

In addition to the books, there are a large numbers of journal articles and book chapters. These will be available from the links in the syllabus. For copyright reasons, most are password protected. The password will be distributed in class or via email.

Assignments and Schedule

WEEK	TOPIC	ASSIGNMENT
1 Jan. 22	Thinking about the Politics of Legal Policy • The Problem of Diagnosis • Framework for Political Analysis	Malcolm Feeley, Court Reform on Trial, 1-32 Joseph Gusfield, The Culture of Public Problems, pp. 1-51 Martin Partington (2005) “The Relationship Between Law Reform and Access to Justice: A Case Study--The Renting Homes Project.” 23 Windsor Yearbook of Access to Justice 375-392.
2 Jan. 29	Access to Legal Services • Measuring legal needs • Legal needs of whom	Deborah Rhode (2004) Access to Justice, pp. 1-23 Legal Services Corporation (2005) "Documenting the Justice Gap in America" ABA Consortium on Legal Services and the Public (1994) Legal Needs and Civil Justice: A Survey of Americans - Major Findings of the Comprehensive Legal Needs Study (Executive Summary) Pascoe Pleasence et al., (2004) “Multiple Justiciable Problems: Common Clusters and Their Social and Demographic Indicators.” 1 Journal of Empirical Legal Studies 301-329.
3 Feb. 5	Access to Legal Services: Solutions I • Government-funded legal aid • Pro bono legal services	Russell Engler, "Towards a Context-Based Civil Gideon Through Access to Justice Initiatives" [unpublished paper available on SSRN] Deborah Rhode (2004) Access to Justice, Chapter 7 Rebecca Sandefur (2007) "Lawyers' Pro Bono Service and American-Style Civil Legal Assistance." 41 Law & Society Review 77-110
4 Feb. 12	Access to Legal Services: Solutions II • Nonlawyer legal services • Unauthorized practice issues	Thomas D. Zilavy & Andrew J. Chevrez (2005) "The Unauthorized Practice of Law: Court Tells Profession, Show Us the Harm," Wisconsin Lawyer (October 2005) Herbert Kritzer, Legal Advocacy, pp. 1-109 (chapter 1, chapter 2, chapter 3) ABA Commission on Nonlawyer Practice (1995) Nonlawyer Activity in Law-Related Situations.ABA Commission on Nonlawyer Practice, pp. 1-13 James Podgers (1993) “Legal Profession Faces Rising Tide of Nonlawyer Practice.” 79 ABA Journal 51-57. Richard Moorhead, Avrom Sherr, and Alan Paterson (2003) “Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales.” 37 Law & Society Review 765-808.
5 Feb. 19	Tort Reform: The General "Problem"	William Haltom & Michael (2004) Distorting the Law, pp. 1-72, 147-226. Allan F. Abrahamse and Stephen J. Carroll (1999) “The Frequency of Excess Claims for Automobile Personal Injuries,” in G. Dionne and C. Laberge-Nadeau, eds., Automobile Insurance: Road Safety, New Drivers, Risks, Insurance Fraud and Regulation. Norwell, MA: Kluwer Academic Publishers. Stephen Daniels & Joanne Martin (1995), Civil Juries and the Politics of Reform, pp. 1-28. Walter Olson (1991) The Litigation Explosion: What Happened When America Unleashed the Lawsuit, pp. 1-50 Walter Olson (2003) The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, pp. 1-23 Richard Abel (1988) "The Crisis Is Injuries, Not Liability." Pp. 31-41 in Walter Olson (ed.), New Directions in Liability Law, pp. 31-41 National Center for State Courts (2006) Examining the Work of State Courts, 2005 (selections)
6 Feb. 26	Tort Reform: Solutions	William Haltom & Michael (2004) Distorting the Law, pp. 73-146, 265-306. Thomas Burke (2002) Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society, pp. 103-141 Allison Frankel (2006) "Who Killed the Mass Torts Bonanza?" The American Lawyer (December 12) Lester Brickman, Michael Horowitz, and Jeffrey O'Connell (1994) Rethinking Contingency Fees Herbert Kritzer (2002) “Seven Dogged Myths Concerning Contingency Fees.” 80 Washington University Law Quarterly 739-794. Jeffrey O'Connell, Stephen Carroll, Michael Horowitz, and Allan Abrahamse (1993) “Consumer Choice in the Auto Insurance Market.” 52 Maryland Law Review 1016-1062.
7 Mar. 5	The Medical Malpractice "Crisis"	Tom Baker (2005) The Medical Malpractice Myth, pp. 1-92. Bernard Black et al. (2005) “Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002.” 2 Journal of Empirical Legal Studies 207-259. Neil Vidmar (1995) Medical Malpractice and the American Jury, pp. 1-35, 95-110.
8 March 12	Malpractice Reform: Doctors vs. Lawyers vs. Insurers	Tom Baker (2005) The Medical Malpractice Myth, pp. 93-180 Michelle M. Mello et al. (2006) “'Health Courts' and Accountability for Patient Safety.” 84 Milbank Quarterly 459-492.
9 March 19	Sexual Predators: The Nature of the Problem	Eric Janus (2006) Failure to Protect, pp. 1-72 Philip Jenkins (1998) Moral Panic: Changing Concepts of the Child Molester in Modern America, pp. 1-19 Report of the Minnesota Attorney General Task Force on the Prevention of Sexual Violence Against Women (1989) Articles from the Wisconsin State Journal (March 2007)
10 March 26	Sexual Predators: Civil Commitment and Other Responses Guest: Eric Janus	Eric Janus (2006) Failure to Protect, pp. 75-160 Philip Jenkins (1998) Moral Panic: Changing Concepts of the Child Molester in Modern America, pp. 189-220 New York Times series on sex offenders (March 2007)
11 April 9	Scot Turow lecture	NO CLASS
12 April 16	Scientific Expert Testimony: The Junk Science Debate	Peter Huber, Galileo's Revenge: Junk Science in the Courtroom, pp. 1-35, 111-129 Joseph Sanders (1998) Bendectin on Trial: A Study of Mass Tort Litigation, pp. 1-15, 45-89 Kenneth J. Chesebro (1993) “Galileo's Retort: Peter Huber's Junk Scholarship.” 42 American University Law Review 1637-1726. Tal Golan, (2004) Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America, pp. 1-51, 254-264.
13 April 23	Scientific Expert Testimony: Gatekeeping and Other Solutions	David Goodstein (2000), "How Science Works," pp. 67-82 in Reference Manual for Scientific Evidence [2nd Edition] (Washington, DC: Federal Judicial Center). Sheila Jasanoff (1993) "What Judges Should Know About the Sociology of Science." 77 Judicature 77-82 Susan Haack (2005), "Trial and Error: The Supreme Court's Philosophy of Science," 95 American Journal of Public Health S66-S73. Herbert Kritzer (2007) "Daubert in the Law Office: Routinizing Procedural Change," 4 Journal of Empirical Legal Studies forthcoming. Gary Edmond (2003) "After Objectivity: Expert Evidence and Procedural Reform," Sydney Law Review "Court-Appointed Scientific Experts: A Demonstration Project of the AAAS [American Association for the Advancement of Science]"; peruse the pages on the website.
14 April 30	Student Presentations
15 May. 7	Student Presentations

Last Updated on April 17, 2007
By Bert Kritzer