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Winter 2004

This information effective for Winter 2004. Check with instructor the first day of class for any changes.

Legal Studies

[LGST-146]

146. Philosophy of Law

(Also offered as Philosophy 146)

Instructor: J. Neu

Texts:

  • Philosophy of Law (Seventh Edition, 2003), ed. by J. Feinberg and J. Coleman (FC) (available at The Literary Guillotine on Locust St.)
  • Supplement (S) (Cases and materials-available on ERes, password: neu)

Topics:

1. Mens Rea and the "Reasonable Man": The Mental Element in the Criminal Law

  • People v. Young (FC 739-41)
  • People v. Goetz (S)
  • Scheppele, "The Reasonable Woman" (FC 456-60)
  • State v. Rusk (FC 461-64)
  • Regina v. Morgan (FC 464-66)
  • Bienen, "Mistakes" (S)
  • Toobin, "The Consent Defense" (S)

2. Legal Insanity and the "Unreasonable Man"

  • "The M'Naghten Rules" (1843) (FC 746-47)
  • ALI Model Penal Code, "The Insanity Defense" (FC 747-49)
  • State v. Guido (FC 750-51)
  • Dershowitz, "Psychiatry in the Legal Process: A Knife That Cuts Both Ways" (S)
  • Feinberg, "What Is So Special About Mental Illness" (FC 751-60)

3. Punishment, Treatment, Prediction, and Proof

  • Morris, "Persons and Punishment" (FC 819-31)
  • Schoeman, "On Incapacitating the Dangerous" (S)
  • Lafollette, "Licensing Parents" (S)
  • Langbein, "Torture and Plea Bargaining" (FC 333-43)

4. Rationales of Punishment

  • Feinberg, "The Expressive Function of Punishment" (FC 761-71)
  • Feinberg, "The Classic Debate" (FC 799-804)
  • Rawls, "Punishment" (S)
  • Murphy, "Getting Even: The Role of the Victim" (FC 842-53)

Exam

5. Responsibility: Causation and Fault

  • Hart and Honoré, "Causation and Responsibility" (FC 630-42)
  • Palsgraf v. The Long Island Railroad Co. (FC 676-82)
  • Keeton, "The Basic Rule of Legal Cause in Negligence Cases" (S)
  • "The Ambiguous Suicide Case" (S)
  • Thomson, "The Decline of Cause" (FC 642-50)
  • Lewis, "The Punishment that Leaves Something to Chance" (FC 650-57)
  • Kadish and Schulhofer, "The Case of Lady Eldon's French Lace" (FC 741-45)

6. Legal Reasoning: Precedent and Principle

  • Products Liability Cases (S)

7. Hart's Rules Model

  • Austin, "A Positivist Conception of Law" (FC 24-35)
  • Hart, "A More Recent Positivist Conception of Law" (FC 36-50)
  • Hart, "Positivism and the Separation of Law and Morals" (FC 50-67)

8. Dworkin's Rights Model

  • Dworkin, "The Model of Rules" (FC 82-100)
  • Dworkin, "Integrity in Law" (FC 127-42)
  • Dworkin, "Civil Disobedience" (S)

9. Law, Liberty, Morality

  • Mill, "On Liberty" (FC 267-78)
  • Lord Devlin, "Morals and the Criminal Law" (S)
  • Hart, "Immorality and Treason" (S)
  • Dworkin, "Lord Devlin and the Enforcement of Morals" (S)

10. Obscenity and Other Speech

  • Feinberg, "Offensive Nuisances" (FC 278-93)
  • Kristol, "Pornography, Obscenity, and the Case for Censorship" (S)
  • MacKinnon, "Pornography: on Morality and Politics" (S)
  • Dworkin, "MacKinnon's Words" (S)
  • Gates, "War of Words: Critical Race Theory and the First Amendment" (FC 412-32)
  • Cohen v. California (FC 395-99)
  • Village of Skokie v. National Socialist Party of America (FC 399-403)
  • Texas v. Johnson (FC 403-11)

11. Paternalism

  • G. Dworkin, "Paternalism" (FC 293-303)
  • Shiffrin, "Paternalism, Unconscionability Doctrine, and Accommodation" (FC 508-25)
  • Michael M. v. Superior Court of Sonoma County (FC 471-79)

12. Privacy and Sodomy

  • Griswold v. Connecticut (FC 354-59)
  • Wasserstrom, "Privacy" (S)
  • Reiman, "Privacy, Intimacy, and Personhood" (S)
  • Bowers v. Hardwick (FC 368-78)
  • "Michael Hardwick" (S)
  • Lawrence v. Texas (S)

13. Abortion

  • Wertheimer, "Understanding the Abortion Argument" (S)
  • Thomson, "A Defense of Abortion" (S)
  • Roe v. Wade (FC 359-63)
  • Planned Parenthood v. Casey (FC 364-67)

14. Good Samaritans and Bad

  • Macaulay, "Notes on the Indian Penal Code" (FC 700-02)
  • Weinrib, "The Case for a Duty to Rescue" (FC 702-23)

15. Justice, Equality, Reverse Discrimination

  • Nagel, "Equal Treatment and Compensatory Discrimination" (FC 433-40)
  • Hill, "The Message of Affirmative Action" (FC 440-54)
  • Williams, "The Idea of Equality" (S)
  • Dworkin, "The Court and the University" (S)

The list of topics above is meant to correspond to neither sessions nor weeks, but only to indicate the order in which topics will be taken up. The pace of topics covered, reading difficulty, and reading load will all increase as the term progresses. This is by design, on the assumption that the necessary foundation for more intensive work will have been established during the early weeks. Attendance at lectures is mandatory. Sections are voluntary.

There will be two major exams: a midterm after topic 4 (on topics 1-4), and a final exam (emphasizing topics 5-15, or to as far as we get).

In addition, there will be a large number of short in-class quizzes on the readings throughout the term. These will be given at the start of class—you must be on time. While you will not be permitted to open books during these quizzes, you will be permitted to consult your notes. (The aim is to ensure that you keep up with and understand the readings.)

While all of the required readings can be found in the required texts, and no additional research or outside reading is required, you should be prepared to engage in close study of materials that will often be lengthy and difficult.

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