Why does the United States of America punish more heavily and frequently than other societies with similar political regimes? What are American understandings of punishment and how have they come into being? How should we characterize the punishment regimes in the country today? These questions will be central concerns. The course will open with Associate Justice Anthony M. Kennedy's understanding of these questions in his "Address to the American Bar Association Meeting, August 9, 2003." It will then engage with a series of writers who explain the concept of punishment as it has come down to us: Beccaria, Kant, Foucault, James Q. Wilson, and James Whitman.
The second part of the course will take up through law review notes, essays, and articles some of the aspects of the legal process that control contemporary legal punishment: prosecutorial indictment, sentencing, and imprisonment. Because the punished are rarely heard from in this process, short fictional and non-fictional works that address this point of view will play a role in class discussions. Another but still very important goal of the course will be generic consideration of the nature of legal writing in its three most available forms to law students: note, essay, and article. In a last goal connected to writing, we will work on the art of the efficient memorandum as a legal form of communication.
Students will be asked to write short one-page papers early in the course on the theoretical writings covered in class. They will then write a research-length paper on their choice of topic in consultation with the instructor.