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Today’s Lecture: American Judicial Behaviorism (Supreme Court Decision Making) 1. The Course 2. The Rules

Lecture Organization: • Greetings • Subject Matter • Teaching Approach • Class Rules • Tips for Success Time

Greetings! • -- My name is Sean Wilson • -- I’m a lawyer and a college professor • -- practiced law for 10 years (mostly criminal defense) • -- specialty: “judicial politics,” philosophy of law, American colonial history (analytic philosophy) • -- I’m a Pittsburgh Steeler fan • -- Favorite philosopher: Wittgenstein • -- I have a daughter who is as wonderful as she is beautiful Questions: Has anyone had me before for a class? (Raise your hand) Time

Subject Matter Basic Inquiry How should a supreme court judge, judge? How, in fact, do supreme court judges, judge? Is this different in process or cognition than the way you judge? Are the decisions of Supreme Courts necessarily political, attitudinal, ideological – and if, so what is meant by that? What would the decisions look like if they were not? Can law constrain supreme judging? Should law constrain supreme judging? What ,in fact, is “law” to begin with?

Subject Matter Two Courses? • I really have two different courses here: • Foundations of American Legal Thought • “Empirical” Judicial Behaviorism

Subject Matter Part I: Foundations of American Legal Thought • What hegemonic legal culture says about its orthodoxy • What is “law” to the Romans? • What is “law” to the English? • What is “law during the enlightenment? • What is “law” to Colonial and early America? • What is “law” in modern American legal regime? Teaching Philosophy of Law Through History Using History to Develop Philosophy

Subject Matter Part II: Social Science and Judicial Behavior This is what, in theory, social science says about judicial behavior Major Caveat It isn’t what social science says as though what social science says should be learned for its own sake It what, philosophically, social science has either contributed or failed to contribute to the subject -- It is therefore a critique of social science through the lens of a philosophy of law specialist Mention Wittgenstein’s quote It is an OUTSIDER’S perspective

Subject Matter Part II: Social Science and Judicial Behavior • -- Things we will be concerned about: • What is ideology? • -- is it merely a way of talking? • B. Under what conditions do social scientists say they “know” it exists? • C. How scientific are these sorts of claims? • D. Are justice decisions dominated by ideology? • -- are yours, right now? • E. What does a fair appraisal of the evidence really show about Supreme Court judging?

Time Subject Matter In summary Three basic sources of “authority” that we will consider Social Science Legal Culture Philosophers But the ultimate referee for the inquiry is philosophy itself (i.e., clarity in language and thought

Teaching Approach excessively philosophical -- this class is so abstract in its approach to legality that some will not like it [mention evaluations last year] This is not an ordinary political science course or a law course Two kinds of minds Details and Facts -- encyclopedic (memorize given answers) -- “synthetic” or critical (what is the foundation and why? What is its limitation. How does it compare to other claims. Compatibility. Reconciliation). Concepts & Abstractions

Teaching Approach Some original material -- some of the material you will be exposed to is completely original If you tell other professors some of the things I’m going to show you – e.g., “postulate-dominate casuistry” – they aren’t going to understand you If you notice, there is no such course or inquiry as “philosophy of bias” (or philosophy of behaviorism”) Some of these things, once further polished, will probably be in the academic marketplace of ideas in the next couple of years.

Teaching Approach • There is no such thing • Not a distinct method of inquiry (not its own “science”) and not an exclusive conversation • What it is: a “reservoir” … • Taking of other inquiries (statistics, history, law, philosophy, psychology) and applying it to political phenomena • “Political science,” in this sense, is a social club • You don’t need to be a “political scientist” to do “political science” – just learn the requisite “input” sciences and start your analysis • Discipline could be called: “educated political analysis” About Political Science “Political Science” is a name, not a description Functions the same in language as … “Sally” or “Rotary”

Teaching Approach “Judicial politics” infighting -- the group of political science scholars who study judicial behavior call their subfield “judicial politics” -- there is a lot of infighting between scholars in this field –- I am a critic of much of the work that is considered elite within this social network (In the interest of full disclosure, some of the colleagues in the field, particularly the so called “attitudinalists,” don’t like me)

Teaching Approach “Judicial politics” infighting -- one of the things that is problematic about political science in this field is that it appears to conduct empirical analysis from a distinct vantage point or perspective Compare: Economics -- assumes something about human nature (selfishness) -- applies statistics to quantities that are commensurable and “countable”

Teaching Approach “Judicial politics” infighting Compare: Judicial Politics • -- trying to imitate economics • -- but has two problems” • people are not selling goods a marketplace (maximizing desire in a pareto trade) • the quantities it studies are not like dollars. • -- so you have a social group trying to superimpose the behavior of market selfishness onto the behavior of judging

Time Teaching Approach “Judicial politics” infighting Compare: Judicial Politics -- people may not judge others the way they judge their own market transactions -- morality, principles, standards, and rules are a problem for this sort of approach -- also, power is a psychological thing, whereas dollars are not. POINT: I’m not an insider here. That will make this course extremely different than if an ordinary political scientist would teach it to you

Course Rules Online Quizzes • -- will receive online quizzes periodically • -- unlike exams, dates are not firm • -- open- note/open-book • -- timed, but reasonably so (explain) • -- what is considered cheating (explain) • -- security questions • Thing you should know about your self • extra time is allotted for the question Consequences of inadequately answering the question (explain)

Course Rules Online Quizzes illustration • -- written quizzes are available for anxious takers • -- “double notice” when quiz is posted • -- 7 days to take it after posting • -- 8th day results in a grade penalty; after 8, grade is F. • … take alook Must take it by the 7th day: Quiz announced: grade penalty 1 7 8 7 days ahead of time Grade is penalized one letter if you take it on the 8th day No excuses allowed! Example: computer excuses To avoid problem, take it before the 7th and 8th day

Course Rules Exams -- may be more rigorous than you expect Alert! -- missing an exam results in an F -- you are not allowed to miss an exam unless you get permission ahead oftime -- Note this applies even if your excuse is great! -- Must secure a make up time before you are allowed to miss. -- the days missed must match the emergency (no free days) good documentation required!

Course Rules Exams -- may be more rigorous than you expect Alert! -- the only exception is if you are physically unable to ask for permission (e.g., being in a coma) -- The key to this rule is asking ahead of time.

Course Rules Email policy -- must keep an active, working university email at all times -- failure to check or “bouncing” is not an excuse

Course Rules Course Reading -- three major texts [show] -- Breyer and Scalia book are written by current Supreme Court justices -- Third textbook is general information about Court opinions -- significant portion will be administered through Angel (watch “syllabus alerts”) -- will be reading Supreme Court cases

Course Rules Quality Points • -- These things are neat; pay attention • -- “Quality Points” are awarded for good things you do to help the classroom environment • -- They apply to three basic activities: • oral participation in class • “briefing” assigned cases (explained in a moment) • drafting multiple-choice questions

Course Rules Quality Points Oral Participation • Ordinary Class Participation Two kinds: (explain) • Extraordinary Class Participation (explain)

Course Rules Quality Points Briefing cases • -- won’t start for a couple of weeks • -- The format for briefing will be explained later • -- however, the format will be different compared to normal legal classes [explain] • -- Just remember two thing for now: • briefs cannot be incorrect; you get points regardless • plagiarism (Oyez & Wikipedia) Alert!

Course Rules Quality Points Multiple-choice questions • -- will give points for drafting quiz and exam questions for me (that come from lectures or reading) • -- If the questions are good, I’ll stick them on quizzes and exams • -- any student-written question that successfully makes it is given to students ahead of time, before they take the quiz/exam. • (like briefing, this is also good for people who don’t have the opportunity to talk or who are shy)

Course Rules Quality Points Getting the points • -- you don’t get the points unless you timely deliver the items in the right way • -- these rules are important, and they MUST be followed

Course Rules Quality Points Getting the points • Deposit in the correct ANGEL drop box • within 7 days of the utterance • Include the substance of the comment Ordinary Class Participation:

Course Rules Quality Points • Deposit in the correct ANGEL drop box • within 7 days of the utterance • Include the substance of the comment • Include the point value! Getting the points Extraordinary Class Participation: Notice! Don’t ask for points after a comment and remember this is like the pass interference call in football

Course Rules Quality Points • Deposit in the correct ANGEL drop box • before the class starts • only applies to cases we are going to cover for that day in class! Getting the points Case briefs: Alert! Pay attention to syllabus alerts! I will specifically announce which cases we will cover. If you don’t follow the progress of the course, you don’t get points

Course Rules Quality Points Getting the points • Deposit in the correct ANGEL drop box • 5 days before a quiz posting or exam date • include a hard copy Drafting Multiple-Choice Questions: Notice! If you do it sooner, the class gets earlier notice of success, and you avoid the problem of me having a “time crunch.”

Course Rules Grading -- There are no personalized grading plans -- Every student is graded by the same syllabus criteria Alert! • -- Grades are not favors or a fiefdom; they are only an indication of how often you scored in the game • Steelers (did they deserve to win?) • The Colts (what did they deserve?) • -- At the end, you only get what your score is; nothing more • -- If you don’t have enough points, blame yourself (the coach, players), don’t blame the referee or the game rules.

Course Rules Parliament -- This year, I am going to call for a student parliament -- Students with excellent attendance OR a 90% average are assigned to the House of Lords -- The rest of you are assigned to the House of Commons (I’m going to be the King) -- The Lords can initiate new class policy -- The proposal must pass the entire Parliament and not be vetoed by the monarch (me).

Time Course Rules Parliament -- Parliament can only hold sessions during class; and I can prorogue -- Lords should elect a speaker, who serves at the will and pleasure of the entire Parliament -- The Speaker notifies me of when a session of Parliament is desired -- Certain rules can’t be changed: e.g., exam dates and grade cuts. -- we also can’t break any education laws. -- But we can deal with small class policies.

Tips for Success Cumulative Material -- watch out, this course will snowball -- You will be lost and bewildered if you do not keep up -- some of you will see, around mid-semester, what a law school course feels like

Tips for Success Level of Difficulty -- This class is more philosophical than my other classes -- If you are just trying to graduate or shooting for a C, run for the door NOW.

Tips for Success Lectures -- Understanding the lectures in this course is CRITICAL to your success -- You should attend every day -- However, if you must miss, there is a nifty option open to you Lectures are “webcast” on my web page Don’t rely too much. Technical difficulties and time constraints. This is not a web-based course. -- [Explain how it works] -- At least a seven day delay Alert!

Tips for Success Syllabus Alerts -- subscribe to these (or review them daily) -- Key updates on course progress (probably should have been called “course alerts”)

Tips for Success Pet Peeves • -- Do not email me asking to calculate your grade. (You should know how to do percentages yourself). • -- Never email me a paper. Emailed papers are not allowed. • -- Do not ask me what is happening in class if I have covered it AND posted it somewhere. • You have online lectures, PowerPoint slides, syllabus alerts, class emails, etc. If I have said it in class and posted it somewhere, I won’t repeat it again. (I won’t even answer the mail)

Tips for Success Contacting me • -- Use Penn State email • -- If you need something immediate, try calling the office or going to my website under “chat, feedback” • (If you do decide to chat in that forum, please remember that it is NOT anonymous. So what you say theoretically goes out to the world)

Tips for Success ANGEL “help” • -- Please read the online ANGEL help located in the Lessons Tab • -- You will be tested on your comprehension of what is there, not to mention the syllabus and this lecture. Testing you on course rules if fair game.

Tips for Success My last semester here • -- I’m leaving for another university after this semester • -- This course will be absolutely nothing like this when I leave. • -- You ought to get the most that you can out of what is here, because I don’t know that it will stay the same.

Tips for Success Phyrst & Ted McCloskey -- Occasionally I watch Ted McCloskey play guitar at this place downtown -- If you happen to be there one night while I am minding my own business, I’d appreciate it if you left me alone -- For God’s sake, don’t try to buy me a beer; it will NOT help your grade! Questions?

Tips for Success My website • -- let me show you my website • -- you will find course evaluations and other material there • -- feel free to participate in any forum that you like • -- Here are a couple • Classroom • Con Law Course Page Time

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