Spring 2006

A special award was given this year to the team responsible for the production of the Handbook of North American Indians, Vol. 14: Southeast, specifically Paula Cardwell, Diane Della-Loggia, Cesare Marino, Roger Roop, and Joanna Cohan Scherer. “While the Handbook is widely celebrated as one of the most important products of Smithsonian scholarship, the singular efforts of these highly skilled and dedicated individuals are rarely properly acknowledged.”

documenting the evolution of the American system in the last two centuries, we'll have to experiment and see how in such a system the notions of crime and punishment have evolved between the nineteenth and twentieth centuries (the colonial period would serve as a backdrop), and what precisely caused such shifts (or "epistemological breaks"): Are the shifts or breaks sudden, or do they translate long-term evolutions that need careful historiographical analyses in order to be detected? For instance, was the presumed shift between the colonial period and the nineteenth century, which made the legal system less prone to religious and ecclesiastical influence, caused by the professionalization of the judiciary, the rapid industrialization and urbanization of the United States, the Civil War, or constitutional matters such as the bill of rights and other related amendments to the Constitution? Or should perhaps all such factors be considered in toto from an analytical perspective? But even if we acknowledge crime within a historical perspective for a given society and culture, there are other transformations to be accounted for besides the general historical trends. For instance, and to remain within the scope of our example on US criminal law, which specific events did trigger the major changes within the system? "Event" ought to be taken generally here: for instance, as a major historical happening, such as the Civil War or the New Deal; or, alternatively, as a judge's opinion, or a supreme court decision, which thanks to the doctrine of precedent and stare decisis, may have in hindsight become "major" landmark opinions, affecting judicial decision making in specific areas for decades to come. One should add in this respect the existence of doctrinal transformations, which tend to be extremely subtle and hidden beneath the visible historical events, on such matters as precedent, stare decisis, the rule of law, or the separation of powers (between the executive, legislative, and judiciary); not to mention the cultural transformations, on such matters as gender representations, the role of women in the labor force, or the infiltration of technology in daily life (the internet or the ipod are prime examples at the moment).
In addition to the general historical transformations outlined above, and for which we will devote the first few sessions (Friedman's Crime and Punishment), we will also take into consideration other alternative (but complementary) sociological or anthropological approaches. In general, students of the law tend to think of the rules of law as the most important component of the system, with an immediate effect on judicial decision making. The judiciary is thus commonly perceived as "applying" the rules of law, or at "interpreting" precedents in order to find new rules. Such a picture, which is common to both civil-law and common-law systems, generally postulates the existence of a "theory" to the system to be found in the rules themselves, and a "practice" in the routines of the courts and the art of judicial decision making. For that very reason, much attention has been allocated to all kinds of constitutional matters, the interpretations of rules, statutes, and precedents, or to the moral or ethical aspects of the law and judicial decision making (in particular in the work of Ronald Dworkin)-all such issues are looked upon as the "heart," "spirit," or "theory" of the system, upon which everything else rests. At the opposite end of the spectrum, such "conservative" views have been challenged either by the law-and-economics school, which looks at the economic foundation of law, including crime (a school best represented by Richard Posner); or by "deconstructionists" of all tendencies-feminists, Marxists, or the Critical Legal Studies (CLS) scholars-which tend to perceive the rules of the judiciary within their broader ideological and political underpinnings.
Even though such scholarly contributions represent different methodologies to understand the law, what they nevertheless share is a common neglect, if not misunderstanding, of practice. Practice is in effect perceived, in most instances, as an outcome of rules, which could be religious, ethical, legal, political or ideological in their very essence. Thus, scholars in the line of Dworkin tend to underscore the "autonomy" of law, a system they believe is rooted in a combination of legal and moral principles, on the one, and the interpretive (or hermeneutical) efforts of judges to reach the best decision possible (in particular when it comes to "hard" cases with no clear precedent) on the other. While others in line with Duncan Kennedy and the CLS school, tend to focus on the lack of legal autonomy, the indeterminacy of law, and the political and ideological underpinnings of the whole system. Even the law-and-economics school, which claims to be the more "practical" of all, falls short when it comes to understanding practice, since an "optimum" decision making must be congruent with the rules of laissez-faire capitalism.
But what happens then in the space of a courtroom? And what are we supposed to make of the linguistic interactions between the social actors (or users) involved in a case? It is precisely at this level of practice that many legal theories, such as the ones briefly outlined above, quickly reach a dead end. As we'll come to realize from Matoesian's Reproducing Rape, what happens in the space of a courtroom proves to have extremely rich connotations for the researcher.
Judges like historians find themselves in the situation of searching for factual evidence to narrate their final ruling. It is in effect up to judges to select from the myriad of utterances, depositions, narrations, discourses, left by witnesses and official authorities, the ones that will ultimately survive the test of factual evidence: which of the "facts" will become factual evidence, and which ones will be relegated to the dubious role of personal testimonies, unreliable data, and tampered with evidence? It is up to judges to sanctify the personal testimonies of witnesses into factual evidence that has been rigorously tested through judicial procedures, and which will be ultimately quoted in the final ruling as objectively valid. The researcher must therefore keep an eye on how the individuated personal narratives of social actors-all of which using the "I" form of witnessingeither metamorphose into more "reliable" accounts approved and endorsed by the judiciary, or else are forgotten and invalidated.
A crime therefore metamorphoses into a method of inquiry, a thing that is objectified into the documents and images that constitute the case-file. When actors discuss the crime, say, in the privacy of their own homes, they will in all probability not adopt the same language and behavior that they would in the presence of a prosecutor or judge, because, as an outcome of institutional constraints, the crime-as-artifact pushes them to different forms of expressions, some of which may be more constrained than the ones adopted in private, or conversely, the objectivation of the crime may push them towards new forms of expression and representations. It is precisely to the documentation of the crime scene by the actors themselves-the most essential aspect of judicial practice-that we'll devote some of our attention.

GENERAL REQUIREMENTS
There are weekly readings that we'll discuss collectively in class. Your participation is essential for the success of the course. You'll have to complete three presentations based (for the most part) on the weekly readings and term-papers (see below). Instructions on the presentations will be posted in due time on Blackboard.
In addition to the two-draft free-topic paper (see below the section on papers), you'll have to submit three interpretive essays based on our weekly readings: you'll receive sets of questions for each. The final grade is averaged as one-fifth for each of the five papers.

All interpretive essays are take-home and you'll be given a week to submit them. The purpose of the interpretative essays is to give you the opportunity to go "beyond" the literal meaning of a text and adopt interpretive and "textual" techniques. A failing grade in all interpretive essays means also a failing grade for the course, whatever your performance in the term-paper is. All essays and papers must be submitted on time according to the deadlines set below.
First Interpretive Essay 20% Second Interpretive Essay 20% Final Interpretive Essay 20% Preliminary paper draft 20% Term Paper & presentations 20% • It is essential that you complete all readings on time, and that you come to class well prepared. Always come to class with the required book: we'll discuss all readings extensively. • The first, second, and final interpretive essays are all based on our weekly readings.
They all consist of a single essay for which you'll receive the appropriate questions at the dates below, and you'll submit them in class a week later. • The question handouts will only be distributed in class-no email communication.
• For all five papers follow the procedures outlined below in the section on papers.
• Essays and papers are to be submitted only in class. Do not send any material as an attached e-mail file or by fax. • It's your responsibility to submit all essays and papers on time at the deadlines below.
Late papers will be graded accordingly, and papers submitted a week after the deadline will be graded F. • Each non-submitted paper will receive the grade of F, and your final grade will be averaged accordingly. • The mid-term paper is a free-topic exercise that you should begin researching as soon as possible. • If you do not show up for one of the assigned presentations, you'll have to submit a five-page report for the missed presentation.

PAPERS
You are requested to write one major research paper to be submitted during the last session, Monday, May 1. You will have to submit, however, a first draft of this paper on Monday, March 27. The first draft should be as complete as possible and follow the same presentation and writing guidelines as your final draft, and it will count as 20% of your total grade unless the final draft is of superior quality. The purpose of the first draft is to let you assess your research and writing skills and improve the final version of your paper. It is advisable that you choose a research topic and start preparing a bibliography as soon as possible. I would strongly recommend that you consult with me before making any final commitment. It would be preferable to keep the same topic for both drafts. You will be allowed, however, after prior consultation, to change your topic if you wish to do so.
You may choose any topic related to the criminal and penitential practices of any society. You may also write on any legal topic of your choice. Papers should be analytical and conceptual. Avoid pure narratives and chronologies and construct your paper around a main thesis.

Kate L. Turabian, A Manual for Writers of Term Papers, Theses, and
Dissertations, 5th ed., Chicago: University of Chicago Press, 1987. Intended for students and other writers of papers not written for publication. Useful material on notes and bibliographies.

May 1: FINAL DRAFT DEADLINE submit your final draft with your preliminary corrected one
Keep in mind the following when preparing your preliminary and final drafts: • once you've decided on a paper-topic and prepared a preliminary bibliography, post an abstract and bibliography of your topic on Blackboard <blackboard.luc.edu> (see below). Your abstract of at least 400 words should include: (i) title; (ii) description; (iii) annotated bibliography; (iv) methodology (e.g. suggestions on how to read sources). Your preliminary draft will not be accepted unless you've submitted an on-line abstract by March 20 at the latest. • preliminary drafts should be submitted on time, March 27.
• preliminary drafts should be complete and include footnotes and an annotated bibliography. (The Turabian reference above is annotated: it briefly spells what the book is about and to whom it might be useful.) • do not submit an outline as a first draft.
• incomplete and poorly written first drafts will not be accepted, and you'll be advised to revise your first draft completely. • if you submit a single draft throughout the semester, you'll receive F for 20% of the total and your final grade will be averaged accordingly. • the oral presentation is an essential aspect of your grade; if you can't attend the last session, request an appointment.
• your final draft should take into consideration all the relevant comments provided on your earlier draft: • all factual and grammatical mistakes should be corrected, in addition to other stylistic revisions. • passages indicated as "revise" or "unclear" or "awkward" should be totally revised. • when specific additional references have been suggested, you should do your best to incorporate them into your material. • there might be several additional suggestions in particular on your overall assumptions and methodology. It will be up to you to decide what to take into consideration. • Submit the final draft with your preliminary corrected one.
• if you're interested in comments on your final paper and interpretive essay, request an appointment by e-mail.
Please use the following guidelines regarding the format of your papers: • use 8x10 white paper (the size and color of this paper). Do not use legal size or colored paper. • use a typewriter, laser printer or a good inkjet printer and hand in the original.
• only type on one side of the paper.
• should be double spaced, with single spaced footnotes at the end of each page and an annotated bibliography at the end (see bibliography below). • keep ample left and right margins for comments and corrections of at least 1.25 inches each. • all pages should be numbered and stapled.
• a cover page should include the following: paper's title, course number and section, your name, address, e-mail, and telephone.

ELECTRONIC FORUM
This course is listed on the Loyola Blackboard webpage to freely post messages and conduct discussions: login at <blackboard.luc.edu> and follow the instructions.