Final Exam Questions
Remember to read the
Invitation to Law and Social Science Desert, Disputes
and Distribution (1986) [on reserve], Richard
Lempert and Joseph Sanders have defined a legal system
as "autonomous" if it is "independent of other sources
of power and authority in social life. Legal action, be
it a decision to prosecute, an award of damages, or the
reapportionment of a state legislature, is in an
autonomous system influenced only by the preestablished
rules of the legal system. These rules determine not
only the consequences of social action, but also . . .
its meaning, and it is from the assigned meaning that
legal consequences follow. . . ."
"If the law is to be autonomous . . . it
must in the ideal case be fully independent of society's
other mechanisms of social control. . . . [The] legal
system should be autonomous [too] in one further sense.
It must be self-legitimating, for to depend upon
political, social or ethical forces for authority is to
be vulnerable to the reach of such forces on decision
making. A legal system is self-legitimating when its
rules and rulings are accepted because they are legal. .
". . . [T]he situation of the law, as we
know it in Western society, is one of partial autonomy.
Law is influenced by the political, ethical or social
order, but this does not mean that the law must be in
essence a tool of the dominant class's immediate
self-interest, the plaything of those in high office, or
the obedient servant of some moral majority. . . ."
and Sanders state that some systems are more autonomous
than others. A system is more autonomous when "a
standard once embedded in law acquires meaning through
the law's own canons of construction rather than by
reference to the interests that gave it birth." Also
"the more general the applicability of legal language,
the less close will be the tie between the legal norm
and the interests of a particular status group. Thus a
system that forbids anyone from forging a check is more
autonomous than one that protects only capitalists from
forgery. Put another way, a legal system characterized
by generally applicable rules is likely to be more
autonomous than one riddled with particularistic
light of what you have learned in this course, (a) how
"autonomous" is the American legal system, either in
terms of the criteria which Lempert and Sanders set out,
or in terms of other criteria which you think better fit
their initial definition; (b) has the "autonomy" (or
lack of it) of the American legal system remained stable
over time, or has it gotten greater or less great? And
does "autonomy" vary from field to field of law? If so,
which branches of law are more "autonomous" and which
END OF QUESTION ONE
Question A or Question B.
Do not answer both
A. The Lawes &
Libertyes (1648) of the Massachusetts Bay Colony
included a section entitled "Bakers" (Documents,
p. 2) that regulated the baking of bread. In Lochner
v. New York (1905, Documents, p. 460), the
United States Supreme Court overturned a New York
statute that regulated the baking of bread. In what
ways did the relationship of law and economic activity
change or not change during the 257 year period from the
Lawes & Libertyes to Lochner?
B. In Calder v.
Bull (1798, Documents, p. 119), Justices Chase and
Iredell have a disagreement. What is the nature of
their disagreement? Identify other instances in the
legal history of colonial North America and the United
States to 1954 in which the problem between Justices
Chase and Iredell has arisen. What does the struggle
over this problem reveal about the legal history of the
United States? How has the issue been resolved?
END OF QUESTION TWO