Prerequisites: None

Exam Type: No Exam

“Hard Cases make Bad Law”; behind this adage (which we will explore) are often competing yet compelling norms and doctrines.  When should individual liberty include authority for parents over their minor children’s education and health care and when should children’s own rights and interests- or priorities or the state- prevail? Should freedom of the press govern or instead rights of criminal defendants when setting boundaries of trial coverage and jury selection? When should state sovereignty trump federal power and vice versa? When should past expectations trump current understandings of needs or justice? Paradigmatic situations present “hard cases” include: 1) where conflicting laws or norms govern the same situation; 2) where governing laws do not point to a clear resolution, and instead leave discretion to the judge; 3) where governing law points to a clear resolution that the decision-maker(s) (judge, juries, public) finds objectionable.  What justifies the resolutions and how do the results affect the legitimacy of the process? “Hard cases” may be exemplars of matters requiring human judgment rather than Artificial Intelligence tools; if so, why? We will examine how particularly hard cases have been resolved, examine alternative resolutions in light of underlying norms and doctrines, and whether alternative frameworks could yield better law as well as desirable results.

In addition to class participation and presentations, students will have an option two write two short papers or a longer paper.