Rutgers University American Studies Harry Furman 01-050-300-80 [email protected] Spring 2012

American Legal History and Culture in the 20th Century

“ Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people ever have found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody's conscience except a little piece of the conscience of all men that ever lived? I guess that's all I've got to say except kiss the babies for me and God bless you…”

- “The Ox -Bow Incident” (1943)

"You know, so much of the time we are just lost. We say please, God, tell us what is right, tell us what is true. There is no justice. The rich win, the poor are powerless. . . . We doubt ourselves, we doubt our beliefs. We doubt our institutions. And we doubt the law. "

-Frank Galvin in "The Verdict” (1985)

“Ben- Without the law, it’s all darkness.

Judah- What good is the law if it prevents me from receiving justice?”

- “Crimes and Misdemeanors” (1989)

This course is a seminar of the law in American culture from the late 19th century to matters of the modern day. Our study of legal history and culture will span the Gilded Age, the Progressive Era, the “Roaring Twenties”, the Great Depression, the era of the “Good War”, the Cold War, the 1950s and 1960s right up to the most recent legal/cultural issues in American history.

We will explore the intersection of law and culture through the prism of race, class, gender and faith as we examine what motivated key legal moments in our collective history. The “law” touches us in many ways and popular culture has reflected a fascination and awareness of the ubiquitous role of legal matters in everyday living. I will attempt to make our study of legal history and culture personal and relevant so that the study of the law in culture is compelling, interesting and even controversial. In a key sense, my goal is to demonstrate that the evolution of the law within American culture is vital to an understanding of history, the world in which we live and our own lives. Along the way, we will think about the law as framed in famous cases and trials as seen in history and in culture (through movies, comics, music, art and television from Perry Mason to Batman to Jack McCoy to The Good Wife) and how “the law” continues to capture public attention and controversy. In doing so, we will touch upon many legal issues that are part of the fabric of American life- personal liberty, law enforcement, the family (marriage, children), divorce), the workplace, sexuality, schools, artistic freedom, censorship and obscenity, national security, religion, race, cyberspace, property, commerce, immigration, civil and criminal sanctions (from the right to sue to capital punishment) and much more.

Books

Kermit L. Hall and John J. Patrick-The Pursuit of Justice- selections Lawrence M. Friedman- American Law in the 20th Century- selections David J. Bodenhamer- Our Rights- selections Supreme Court Case Studies- selections Elizabeth M. Smith-Pryor- Property Rites Jonathan Harr- A Civil Action

ATTENDANCE AND PARTICIPATION Classroom attendance is vital as we meet only 14 times. Attendance and promptness will be taken into account when determining your final grade. Participation in class is encouraged and expected. Although there will be, by necessity, a portion of most sessions that will involve lecture, there will be significant opportunity for discussion and debate.

CONDUCT, ETIQUETE AND INTERNET CONTACT All opinions are valued and respected in class. I expect everyone to listen respectfully to others’ point of view and to take responsibility for meeting deadlines and being prepared for class. Bring to class a notebook and the materials that we will be dealing with during that week’s session to. The class includes a Sakai site that will serve as a center-point for materials in the class. Multiple film/music references are provided in Resources on Sakai for which only a few will be used in class. Most classes will involve a reading of multiple short selections and about 50 to 100 pages of reading per week as well as a viewing of at least several film shorts in anticipation of class discussion. Occasionally, there will be a request to provide a Blog entry of one’s own thoughts about an issue. I will be communicating with the class as a whole and with individual class members via Sakai. Everyone should have a functioning email address that will become part of that network. Email will be used to explain class assignments, provide a preview of issues to think about before or after class and a means of discussing matters that may affect your work in the course. As a matter of courtesy, I will expect you to let me know via email (or telephone) that you cannot attend a class. Email will also provide a means of turning in extra credit efforts- or the cancellation of class if there should be inclement weather (not unusual during the early weeks of the Spring session)

GRADING: Class Attendance, Participation, Blog Entries (25%) Essay/Commentary- (25%) 1 Midterm- (25%) Final Exam- (25%) Intangibles- Extra credit will enhance your grade: Excessive absences or lates will result in penalization of your grade

CLASS SCHEDULE: (subject to revision as needed)

1/18- Law Matters!-An Introduction to Themes in American Legal History and Culture

What is “the rule of law”? In what ways are law and culture intertwined? Why is the Constitution central to study of American law and culture and why is there so much controversy about its meaning? What is meant by judicial review and judicial interpretation? How are law and lawyers viewed in popular culture? Why so many “lawyer jokes”?

Read- Frank Kafka- Before The Law W.H. Auden- Law, Like Love Jill Lepore- The Commandments Bringing Bogie Out of the Courtroom Closet Judicial Intent; Two Views (all in R) View- Stephen Colbert- Spin, Judge Judy- excerpt, Lionel Hutz or A World Without Lawyers- from The Simpsons

Begin reading Property Rites

1/25- Identifying the Issues: Law and Popular Culture in the Gilded Age and at the Dawn of Progressivism

After review of the cases, in what way do these judicial opinions relate to matters of race, gender and labor and management in the late 19th and early 20th century and how do they reflect the ideas and beliefs central to the larger culture? On the basis of what legal concepts did the Courts make decisions? What kind of “America” exists at this time in history and how is that different from today?

Read Hall- The Supreme Court as a Mirror of America- skim-Introduction- 5-11 Plessy .v Ferguson – 53-59 Lochner v. New York, Muller v. Oregon- 60-68 Read- Bradwell, Plessy, Lochner and Muller- Opinion excerpts (R) The Forgotten Trial of Josephine Terranova (R) Read SCCS- The Slaughterhouse Cases, Civil Rights Cases, E.C. Knight v. U.S., In Re Debs, Northern Securities v. U.S.- 15-16, 19-20, 23-26. 29-30 View- A New Kind of Justice, The Slaughterhouse Cases, The Civil Rights Cases, Strauder v. West Virginia, Yick Wo and the Equal Protection Clause, Historic Cases- Plessy v. Ferguson, Workers Rights \ (Lochner) ( R)

Continue reading Property Rites

2/1- Debating Free Speech and “Rights” in the Progressive Era and World War I

What were the central legal concepts in the speech cases? When is speech not permitted in these cases? How does the Triangle fire influence the legal history and culture of the workplace? What social concerns are reflected in the Mann Act and what can we learn about the culture that created that law and its implantation? What cultural issues are reflected in the case of ?

Read Hall- Schenck v. United States, Abrams v. United States- 69-75 Read SCCS- Olmstead v. U.S.- 43-44 Read Schenck, Abrams and Hammer- Opinions- (R) “Murder Case and the “Leo Frank ” Lives On” (R) “Without Sanctuary: Photographs and Postcards of Lynching in America” (R) “The Mann Act” (R) “Triangle Shirtwaist Fire Co. Factory Fire Legacy Under Threat” (R) Diving Into the History of the Income Tax (R) “The Rise and Fall of Prohibition” View- Workplace Safety and the Progressive Era, Unforgivable Blackness, Triangle Shirtwaist Fire, Prostitution and the Origins of the Mann Act, The Leo Frank Case, Senator Mike Lee- and Why Child Labor Laws Are Unconstitutional, Eric Foner on the Protection of Civil Liberties 1 +2 (R) Music- Billie Holiday- “” (R)

Continue reading Property Rites

2/8- Race Matters: Citizenship, Crime, Life and Death, and an American Tragedy in 1920s Culture

In what way does the Rhinelander case reflect many of the key issues that in the 1920s? What is “passing” and why does is it a poignant reflection of American culture in the 20th century? What role do issues of identity, race, immigration, morality, religion and psychology play in the Rhinelander case and the other matters that are the subject of this week’s readings?

Finish reading Property Rites- The book will be central to our discussion this week (Review the Guide to be posted in Resources)

Read- Ozawa v U.S., U.S. v. Thind, Buck v. Bell- Opinion Excerpts “Justice Denied: The Trial of Sacco and Vanzetti” “The Scopes Trial” “: The Crime of Compulsion” “The Trial of Dr. Ossian Sweet” “The Dying Declaration of Madge Oberholtzer” Frances Noyes Hart- The Bellamy Trial Composograph- from the Rhinelander Trial- take a quick look (in R) View- Compulsion (closing statement), Inherit The Wind excerpts, Scopes Monkey Trial, The Perfect Crime: Leopold and Loeb (I and 2), Racism in America: Who Started It? (Part II), Buck v. Bell (Against Her Will), Ken Burns’ Prohibition, Parts 1-3, The Sweet Trials, Daniel Okrent discusses Prohibition on “The Daily Show” (most available in R) Music- “Prohibition Is a Failure” (R) “Love Will Find a Way”- Eubie Blake- (R)

2/15- The Great Depression, the New Deal and the Big War

In what ways does the United States change dramatically as a result of the 1930s and the “Good War”? Is the nation still struggling with issues relating to race, immigration, gender, sexuality, religion, loyalty and class?

Read Hall- West Coast Hotel v. Parrish- 76-84 Minersville School District v. Gobitis, West Virginia Board of Education v. Barnette- 85-92 Hirabayashi v. U.S. v., Korematsu v. U.S.- 93-100 Read Friedman- “The Rooseveltian Revolution”- 151-183 Read SCCS- Denial of Right To Counsel- Powell v. Alabama- 47-48 Legislative Powers- A.L.A. Schechter Poultry Corp. v U.S.- 49-50 Read West Coast, Korematsu, Minersville - Opinions (R) Read- “A Picture From Life’s Other Side” “Mr. District Attorney” “Constitutional Background to the Social Security Act” “Betty Bates, Lady At Law” “A Growing Campaign to Undo the New Deal” (all in R) Music- “The Bad in Every Man” (R) “Kenji”- Fort Minor (R) View- Minersville School District v. Gobitis, Korematsu v. United States ( 1 and 2), Child Labor in the 1930s, Sen. Mike Lee and the New Deal, Rosenberg - FDR and the Court (West Coast Hotel v. Parrish), Schechter Poultry v. United States, : Making of an American Tragedy, Snow Falling on Cedars, Counsellor At Law, The Case of the Velvet Claws, Heavens Fall, The Story of Fred Perkins and the NIRA (most in R)

Midterm Discussed

2/22- Postwar America: The Cold War and the Legacies of Nuremberg and McCarthyism

How does the War and its aftermath revive the interest in natural law and awaken concerns about national security and loyalty in American popular culture? In what way does this period reflect a high point in respect for the law and lawyers in American culture?

Read Hall- Youngstown Sheet & Tube Co. v. Sawyer- 101-107 Read Friedman- “The Cold War and Political Justice”- 330-339 Read- “Arthur Miller Discusses the Paranoia of the 1950s” (R) “Judges Judging Justices: Judgment at Nuremberg” (R) “The Nuremberg Trials and American Jurisprudence” (R) “Law, Cinema and Ideology: Hollywood Legal Films of the 1950s” (R) Read SCCS-Dennis v. United States, Watkins v. U.S., Yates v. United States Barenblatt v. United States- 69-80 (McCarthy/post-McCarthy cases, Everson v. Board of Education, McCollum v. Board of Education- 65-68 (religion cases) View- Guilty By Suspicion- excerpt, Anatomy of a Murder, Perry Mason- The Case of the Restless Redhead, Judgment at Nuremberg, Better Dead Than Red (Part1), Edward R. Murrow, Reds Under the Bed ( 1 and 2), A Place in the Sun (most in R)

2/29 A Change Is Gonna Come: The Civil Rights Movement and the Scope and Influence of Judicial Action

What led up to Brown- and did Brown change America? What role can And should the Court play in changing a culture? Should Courts attempt to change society? Why is Brown a such a controversial case from a legal point of view? From a cultural point of view?

Read Hall- Brown v. Board of Education of Topeka, Kansas- 108-119 Read “Can A Law Change Society?” (R) Brown – the Opinion (R) Brown v. Board v. U.S. Constitution (R) “The Southern Manifesto (1956)” (R) “To Kill a Mockingbird: A Retrospective Review”- Roger Ebert (R) Read SCCS- Private Facilities- Heart of Atlanta Motel v. U.S.- 97-98 Read- Chermak- The Murder- 231-244 View- Gaines v. Missouri, Sweatt v. Painter and McLaurin v. Oklahoma, Separate But Equal, To Kill A Mockingbird, The Story of Emmett Till’s Murder (Parts 1 and 2), Elizabeth Eckford, American Experience:A Class Apart, Simple Justice (2) Shelley v. Kraemer ( in R) Music- “You Can’t Stop the Beat”- from Hairspray, “Emmett Till”- Bob Dylan “Black and White”- Pete Seeger, “A Change Is Gonna Come”- Marvin Gaye “People Get Ready”- The Impressions (all available in R) Art- The Problem We Live With- Norman Rockwell (R)

Midterm Will Be Due

3/7- The Warren Court and the 1960s – The Expansion of Rights- Law Enforcement and the Criminal System

In what way did the Warren Court modify the procedure of law enforcement in the nation? Was this an appropriate extension of Constitutional principles? What impact did the Warren Court’s Opinions in law enforcement have in the larger popular culture?

Read Hall- Baker v. Carr, Reynolds v. Sims- 120-125 Miranda v. - 140-145 Read SCCS- The Legality of Evidence- Mapp v. United States- 81-82 A Poor Defendant’s Right- Gideon v. United States- 89-90 The Right to Counsel- Escobedo v. United States- 91-92 Nature of a Fair Trial- Sheppard v. Maxwell- 101-102 Evidence From Bugging- Katz v. United States- 103-104 Read Bodenhamer- Right to Protection…Search and Seizure – 122-128 The Rights of Juvenile Defendants- 158-165 Read Miranda- Opinion- (R) Alfred Hitchcock Introduces The Wrong Man (R) Twelve Angry Man: Sidney Lumet’s Humanism (R) “Batman and the Rule of Law” (R) “The 1964 Kitty Genovese Tragedy” Music- Bob Dylan- “The Lonesome Death of Hattie Carroll” and “Hurricane” View- Gideon’s Trumpet, Miranda v. Arizona, Twelve Angry Men, The Defenders, The Wrong Man, Jack Webb discusses Miranda in- Dragnet (most in R)

Begin reading A Civil Action

3/21 The Legacy of the Warren Court - The Changing Family and the Civil Expansion of Rights

What happened to the nature of the family in the 1960s and thereafter? If there have been changes as a result in the popular culture, would you characterize this as progress and consistent with Constitutional principles?

Read- Loving v. Virginia- Opinion – (R) Griswold v. Connecticut- Excerpt of Opinion (R) Bowers v. Hardwick- Opinion (R) “48 Ads…” (R) “The Interracial Romance as Primal Drama” (R) Read Hall- Griswold v. Connecticut- 134-139 Roe v. Wade- 159-170 Read Friedman-“Family Law and Family Life”- 430-449 “Sex Discrimination”- 302-310 Music- Mary Chapin Carpenter- “He Thinks He’ll Keep Her”, Suzanne Vega- “Luka”, Nanci Griffith- “The Loving Kind”, Tammy Wynette- “Stand By Your Man” (all in R) View- Griswold v. Connecticut, Roe v. Wade, Pelican Brief (scene on Bowers v. Hardwick), Historian Eric Foner on the Origins of Privacy (1 and 2), Loving v. Virginia, Laurence Tribe Discusses The Invisible Constitution and Roe v. Wade

Continue reading A Civil Action

3/28- The Rebirth of Conservatism and A Comment on the Recurring Theme of Vigilante (Extra-legal) Justice, the Crowd and the Search for Justice

In what way is a “conservative” Court different from others? How do we know when we are reading a “conservative” Opinion? In what ways are the conflicts between liberal and conservative jurists reflected in issues about race, religion and punishment in this time period? What do the movies from the 1930s to the 1980s say about perception of the mob and vigilante justice in the United States?

Read Hall- Tinker v. Des Moines- 165-171 United States v. Nixon- 171-179 Regents of the University of California v. Bakke- 180-188 Read- Regents v. Bakke- Opinion- Excerpt (R) “Ox Bow Incident: A Powerful Study of Mob Mentality” (R) Read Bodenhamer- …Cruel and Unusual Punishments- 166-173 Read SCCS- Racial Preferences in Employment- Kaiser v. U.S.- 123-124 Gregg v. Georgia- 119-120 View - Hurricane, Justice with Michael Sandal-Episode 9- Arguing Affirmative Action, Busing in Boston, The Ryan White Story, Dead Man Walking, The Ox Bow Incident, Man Who Shot Liberty Valence, Talk of the Town, Fury, Town Without Pity, Dirty Harry, The Thin Blue Line, The Dark Knight Music- I’ve Got Rights - Hank Williams Jr.

Continue reading A Civil Action

4/5- A Civil Action and the “Litigation Explosion”?

What does Jonathan Harr’s A Civil Action tell us about the state of civil justice in the United States? How realistic are the issues presented in the novel? Has there been a litigation explosion in the U.S.? If so, why? In what ways do personal injury cases, toxic torts, matters of obscenity and free speech and discrimination in the workplace and in the society- represent legitimate or illegitimate expressions of Constitutional rights in American culture?

Finish A Civil Action- The book will be central to our discussion this week (Review the Guide to be provided in Resources)

Read Friedman- “The Liability Explosion”- 349-370 Read Hall- New York Times v. Sullivan- 126-133 Read- “McDonald’s Coffee Cup Case” (R) Read SCCS- International Union v. Johnson Controls- 139-140 View- Silkwood, North Country, The Insider, Erin Brockovich, Philadelphia, A Civil Action, Flash of Genius

4/12- The Clinton Years and the Close of a Century- Culture War?

Do matters of race and criminal conduct continue to plague American culture at the end of the 20th century? In what way do the cases involving art, obscenity, the flag and schools reflect an ongoing cultural and legal conflict? Why do “life and death” Court case become critical matters at this time? How important is the case of Bush v. Gore? What lessons, if any, can be learned from a close study of that case and the context in which it is decided?

Read Hall- Lemon v. Kurtzman- 152-158 Bush v. Gore- 189-199 Read Chermak- The Murder of Yusef Hawkins- Vol 2- 79-100 The Susan Smith Child Homicide Case 179-196 Representing O.J. Simpson- Vol. 2- 161-179 Read Friedman- “Religion and the Law”- 506-516 Read- Texas v. Johnson- Opinion N.J. v. T.L.O. (R) “The Supreme Court Commits Suicide- Bush v. Gore” Art on Trial- review the site and the cases (R) FCC v. Pacifica- Opinion excerpt (R) Hustler v. Falwell- Opinion excerpt (R) Lynch v. Donnelly- Opinion excerpt (R) Cruzan v. Director- Opinion excerpt (R) Read SCCS- Bethel v. Frazier, Hazelwood v. Kuhlmeier, Vernonia v. Acton- 129-132, 151-152 View (Recommended or TBS)- Interview-Sam Waterston- Jack McCoy of “Law and Order. Indictment - McMartin Trials, Frontline- The O.J. Verdict, People v. Larry Flynt, Dirty Pictures, The Central Part Jogger Music- “Searchin’ My Soul” – Vonda Shepherd- from Ally McBeal “American Skin (41 Shots)”- Bruce Springsteen

4/19- 9/11- Hate, Terror and the Limits of Freedom and Privacy

Should the expression of “hate” be subject to greater sanction? Are there certain kinds of speech and conduct that require a public acceptance of limitation of certain privacy rights in the name of security?

Read- “The Trial of Jack Bauer” (R) Read- Alan Dershowitz- “Is There a Torturous Road To Justice?” (R) Read SCCS- Individual Rights and Terrorism- Hamdi v..Rumsfeld- 161-162 Read - Hamdi- Opinion- (R) R.A.V. v. St. Paul- Opinion Excerpt (R) Brandenburg v. - Opinion excerpt Safford v. Redding- Opinion excerpt Wisconsin v. Mitchell- Opinion excerpt Read Chermak- Timothy McVeigh: Oklahoma Bombing- Vol. 2- 197-216 Columbine High School Shootings- Vol. 2- 255-266 Abu Ghraib Torture- Vol. 2- 305-3 Music- Foster The People- “Pumped Up Kicks” Paul Simon- “Boy in the Bubble” ( R) View- Rendition, Dirty Harry and Torture, Extraordinary Rendition, Torture and the Law, Is This Hate Speech? Or Free Speech, Skokie, The Laramie Project, Colbert-Full Body Scanners and Captain Kangaroo’s Court, The Matt Shepherd Case, The Laramie Project, Should Jawad Be Free?

4/26- A Return to the Gilded Age?- Some Final Remarks

What recurrent legal issues are reflected in this week’s readings? In what ways is the culture of this nation different from the end of the 19th century when we began our study? Would we be better off going back to the legal thinking and culture of that time? If so, what would change about the way we lead our lives? If you would choose not to go back, what role should law play in our lives and what then of our future as a people and as a nation?

Read Hall- Epilogue: “We Are All Slaves Of The Law”- 200-203 Read SCCS- Alexander v. Sandoval, Kelo v. City of New London- 163-164 Read “Order in the Court-What Hollywood Gets Wrong, Right About Lawyers (R) Read “Casey Anthony as Cultural Fall Guy” (R) “The CSI Effect: Big Surprise, TV Is Dramatized” (R) “Commentary: Little Allie McBeal Has Grown Up” (R) “What Jennifer Saw” (R) “Amanda Knox: The Battle Over Image” (R) “Connecticut Supreme Court Hinges on Facebook Photos” (R) “Michael Clayton: Hollywood’s Contemporary Hero-Lawyer” (R) “A Comment on Snyder v. Phelps” (R) Read Bodenhamer- The Right to Property- 187-195 Music- Street Dogs- “Union and the Law” and “There is Power in a Union” View- Michael Clayton, Book TV- The Presumption of Guilt- Charles Ogletree, Charlie Rose- Lawrence v. Texas, New Twist -Rutgers Suicide Case- Tyler Clementi, Colbert- Citizens United v. Federal Election Commission, The Ryan Halligan Story, The Daily Show- “Citizens United”, Crimes and Misdemeanors (in R)

Final Exam Discussion

GOOD LUCK