Another example is Beauharnais v. Illinois, the 1952 group libel
case. When discussing how the law has changed since then, and how the case
would come out today, students have to discuss how the court should
interpret the assertions (there are multiple possible interpretations),
whether the interpretations are fact or opinion, and whether some possible
interpretations of the assertions -- for instance, that crime rates are
higher among blacks than among whites -- are not actionable because they're
true. (Recall that one of the issues in Beauharnais was whether the
conviction had to be reversed because Beauharnais wasn't allowed to argue
truth as a defense; the Supreme Court held that the answer was no, since
there was no evidence that Beauharnais satisfied the "with good motives and
for justifiable ends" part of the test; today truth would have to be
accepted as a complete defense, given Garrison v. Louisiana. Also, one of
the arguments *against* group libel laws is that having such laws would
require courts to make factual findings on such claims, and might actually
buttress racists' claims if they could point to a court specifically finding
that this-and-such claim is accurate.)
To tie this to the post that started this subject, if a student
prefers not to be called on for this discussion, I would certainly accede to
his request, whether it's for religious reasons or other reasons.
Generally, I've found that students handle the discussion well -- I've
taught the case at least seven or eight times -- but I can see why some
students wouldn't want to talk about it, either because they find
Beauharnais' claims so repugnant, or because they're reluctant to talk about
such subjects for fear of offending classmates.
On the other hand, I also think there's pedagogical value in
requiring students to talk even about things that most trouble them --
lawyers, after all, may have to do that in their practice. I think this
pedagogical value is outweighed by the pedagogical costs of pressing
students into this sort of service; but I can certainly see why other
professors might disagree. What the rule here should be is thus something
of a tough question in my view.
Let me ask another question: Say that a student at a public law
school has a religious objection, or a deeply felt secular conscientious
objection, to responding to discussing a particular topic on the final exam.
Naturally this would be a broader objection that Axson-Flynn's, who objected
merely to using certain words; but say that the exam requires students to
write a majority opinion and a dissenting opinion in some case -- that's how
my exams are framed -- and a student feels that he can't write one or
another, because that view is so evil that his religion tells him that he
can't defend it even in a playacting context. What should the
constitutional rule (or state RFRA rule) be there? (I actually try to avoid
the extremely controversial topics for the exam, because I don't want
people's grades to be skewed by whatever emotional, religious, or moral
problems they might have with dealing with some problem; but I can certainly
see why some other professors might take a different view, and in any event
some of these religious objections may be hard for me to anticipate.)
Eugene
> -----Original Message-----
> From: Rick Duncan [mailto:[EMAIL PROTECTED]
> Sent: Tuesday, February 10, 2004 10:14 AM
> To: Law & Religion issues for Law Academics
> Subject: Difficult Issues In Class
>
>
> Another difficult issue to teach, because of the
> graphic nature of the facts, is Stenberg and
> restrictions on partial birth abortions.
>
> The opinions in Stenberg feature graphic descriptions
> of various abortion techniques (and I have noticed
> that the casebooks have severely edited these
> descriptions--and I wonder why the editors made this
> choice). But can you really understand the law
> governing partial birth abortion (not to mention the
> moral dimension of the issue) without reading these
> graphic medical descriptions?
>
> Rick Duncan
>
>
>
> =====
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> "When the Round Table is broken every man must follow Galahad
> or Mordred; middle things are gone." C.S.Lewis
>
> __________________________________
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