This course will be taught entirely online via Zoom.
In my usage, “legal liberalism” refers to a jurisprudential position on the content and structure of valid legal argument in a society that is committed to instantiating a liberal conception of justice. I believe that the United State is such a society, know that post-World-War-II Germany is such a society, and think that many other countries are so as well. Legal liberalism claims that in such societies arguments that examine the concrete extensions of liberalism (of its placing a lexically-highest value on those moral-rights bearers for whom it is responsible being treated with appropriate, equal respect and concern) are not only generically legally valid but are dominant. Such arguments are dominant in the sense that (1) they control both the legal validity of other modes of argument that legal actors have used to identify the answer to legal-rights questions that are correct, not incorrect, or wrong as a matter of law and the variants of these other modes of legal argument that are valid and (2) with one limited exception, they determine the answer to any legal-rights question to which they are applicable that is correct as a matter of law.
The course will begin by discussing various moral concepts and delineating two philosophically-informed empirical protocols for identifying respectively the moral category to which a particular society belongs and the moral norm to whose instantiation a particular society of moral integrity is committed. It will then consider the abstract definition and extensions of liberalism and various non-liberal conceptions of the moral good. After that, the course will examine the implications of liberalism for the resolution of various contract-law, tort-law, property-law, civil-procedure-law, antitrust-law, and constitutional-law issues in a liberal-moral-rights-based-society. It will also address various alternative positions on the content and structure of valid legal argument in the U.S. that have been taken by U.S. legal scholars and judges.
Course grades will primarily be based on a paper that students will have to submit by the end of the exam period. That paper can either (1) analyze in detail the jurisprudential assumptions that teachers of other courses they have taken were making and/or that the authors of the textbooks that were used in other courses they took were making or (2) address some other course-relevant issue or set of issues. In the latter case, the student will have to secure advanced approval of the proposed paper from the Lecturer. The Lecturer may revise upward the grade of any student whose class-participation was particularly valuable.
Markovits, Richard S. 