FINAL PAPER TOPIC
"You're the Judge"
.
Drawing on the reading and your own considered intuitions and good judgment, decide the case on the following pages. In writing your opinion, think of the arguments that might be made against it, and respond to them. In defending your position, offer what you believe are the most principled arguments you can make.
In thinking of objections to your opinion, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive.
Offer not only what you believe to be the best defense of your decision, but the clearest expression of that theory of law which best supports your argument and best helps to make sense of your reasoning, think of some other legal theory (or theories) that support and encourage a different line of reasoning, and respond to it (to them).
Papers should be between 6 and 7 pages in length and are due on Monday, May 9th by 10:00 AM for seniors (ALL seniors) and by 4:00 PM on Monday, May 9th for everyone else. Papers should be handed in to the Philosophy Department Main Office (RABB 305).
If you send an e-mail copy, send your paper as an attachment but also in text form as part of the e-mail itself. It will lose its format, but if it's sent in the body of the e-mail and not only as an attachment, we will most likely have it in some form. We will do our best to download and run off, the version you send as an e-mail attachment.
If you elect to submit your final paper via e-mail, you must also deliver a hard copy to the Office or have a hard copy delivered on your behalf by a friend, relative, or employee of DHL, Federal Express, UPS, or the U.S. Postal Service and that, the hard copy, must arrive in the Philosophy Department Office no later than 4:00 PM on Tuesday, May 10th. It is your responsibility that we receive a copy of your final paper on or before the due date.
If you are mailing a hard copy, please mail it to:
Professor Andreas Teuber (PHILOSOPHY OF LAW)
Department of Philosophy (MAIL-STOP - 055)
BRANDEIS UNIVERSITY
South Street
Waltham, MA 02454
Tel. 781-736-2789
FINAL PAPER TOPIC
"Where There's a Will . . . "
1. The Case
The facts of the case are simple enough:
Francis Palmer executed a will nearly a decade ago in which he gave "two small legacies" to his daughters and the remainder of his estate to his grandson, Elmer. The estate left to Elmer was "considerable" and included "the farm on which Elmer and the grandfather lived." In 1882 Francis Palmer, the grandfather, remarried and Elmer, "in order to prevent the making of a new will in favor of his grandfather's second wife, murdered his grandfather by poisoning him." Elmer was arrested, tried, convicted of murder and imprisoned. The two daughters brought suit to "block" Elmer from "enjoying the disposition made in his favor" in his grandfather's will. In the first round the court decided that the will was valid and that Elmer was entitled, as the will clearly and plainly made out, to the bulk of his grandfather's estate and awarded it to him. The daughters appealed this ruling on two grounds. One, they argued that it is in the nature of a will that it can be changed at any time until the death of its maker, Elmer, "by murdering his grandfather, deprived him of this right." And two, that as a matter of any reasonable interpretation of the law of wills, "it could not have been the legislature's intent that this rule should be applied in such extraordinary circumstances." Elmer's attorney had two straight-forward arguments in reply: (1) that the words of the law of wills and the will itself "should receive their plain and ordinary meaning" and (2) that "as Elmer had been imprisoned for the murder of his grandfather, to be deprived of his legacy would be to punish him for the same act twice."
2. The Appeals Court Decision
On appeal, although the court ruled in favor of the daughters, the court was of two minds. As Justice Earl put the question before the court: Elmer, the grandson, "knew of the provisions made in his favor in the will . . . and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him and the sole question for our determination is, can he have it?" Justice Earl thought he could not; Justice Gray thought he could. Indeed Justice Gray believed this to be an "easy" case, arguing that Elmer, the grandson, was entitled to his inheritance. Gray put the matter simply:
I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is confined. The question we are dealing with is whether a testamentary disposition can be altered, or a will revoked, after the testator's death, through an appeal to the courts, when the legislature has by its enactments prescribed exactly when and how wills may be made, altered, and revoked, and apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. (See the full opinion: Riggs v. Palmer)
3. The Decision Has Now Come To You
Imagine that you have been miraculously transported back to the nineteenth century, to the year 1890 to be exact, and this case has found its way to you. You have risen through the ranks of the New York State Court system and now preside as Chief Justice of the New York Supreme Court. Imagine, too, that there are five of you, five justices on the High Court and that two justices come down in favor of the daughters and two in favor of Elmer and the deciding vote is left to you. Thus, this decision is now "your decision." Can Elmer have his inheritance? Yes or no? What is your opinion? You're the Chief Justice, remember. What do you think? And, most importantly, what underlying theory of law best supports and explains your decision?
4. Riggs and "The Speluncean Explorers"
In the course of writing your opinion, imagine that, although you are sitting in judgment in 1890 in New York, you happen to have access to a number of readings from Philosophy of Law. This should be no more difficult to imagine than that you have been transported back to the 19th century and to the New York Supreme Court where you are Chief Justice. Indeed, it may be easier to imagine since you have (presumptively) read the Seventh Edition of the Philosophy of Law text edited by Jules Coleman and the late Joel Feinberg. There you will find ("How convenient," you say to yourself) a transcript of the Appeals Court decision with Justice Earl on one side and Justice Gray on the other. See pp. 100-105 for the transcript of the Appeals Court Decision.. You notice, too, that there is also a reprint of Lon Fuller's famous hypothetical case, "The Case of the Spleuncean Explorers," a case as Fuller describes it, not so different from the situation in which you now find yourself. "A classic," you say to yourself, "in contemporary jurisprudence." That case, you recall, also pitted five justices against one another, all sitting on the bench of the Supreme Court of Newgarth in the year 4300. "An exhilarating excurson into fundamental theories of the law," you say to yourself.
5. Thinking About Rules and Principles
Of course, it is one thing to think of arguments for and against a particular outcome in this case. It's a somewhat different story to explore and develop a theory of law that best explains the reasoning that brought you to a certain conclusion. In thinking about the arguments in this case, you decide that it is unquestionably helpful to look at the Appeals Court decision and the opinions of Justices Earl and Gray. So, too, Ronald Dworkin also talks about Riggs v. Palmer and perhaps it might also be useful to look at what he has to say about the case. Dworkin appears to talk about Riggs in his essay on "The Model of Rules," where he (Dworkin) seems to make much of the distinction between rules and principles. See pp. 82-99 of the Philosophy of Law text. You think this distinction might be important because it would appear that Justice Gray's underlying theory of law in his opinion did not include principles; whereas Dworkin's theory, whatever that might be, appears to include principles as well as rules. You think you may already be beginning to get a headache. "But," you say somewhat cheerily to yourself, "you're the judge, get over any squeamishness you may have and get on with the job at hand." Also as already noted Justice Gray thinks this is an "easy" case; whereas Dworkin thinks it is a "hard" case.
6. Theories of Law
Then again, you also have a number of handouts. "Handouts are good," you mumble to yourself for no particular reason. These handouts on different "Theories of Law" may come in handy ("'Handy handouts', that's good," you say in a somewhat self-congratulatory way) There was one, you recall, on natural law theory and one on Hart's legal positivism and one on Dworkin, etc. These could all be useful in locating and identifying that theory of law that best supports your own argument in Riggs. In fact, you think Professor Teuber may be right or at least have a point when he says, somewhat grandly, that for a judge, any judge, to decide in a given case what the law is, requires him or her to adopt - implicitly or explicitly - a theory of what law is. The point of this exercise, you think to yourself, is indeed to bring the theory of law on which you implicitly have relied in making your decision more explicitly to light, more evident and available to view. In pursuing this goal, the readings and the handouts are likely to be of some use and it may even make sense to imagine the opinions of the other justices on the New York Supreme Court as surrogates for different legal theories of the law in the tradition of Lon Fuller's "Speluncean Explorers," where each judge represented a different fundamental legal theory. It might be helpful, you think, to regard your fellow justices as appearing in the guise of the likes of Ronald Dworkin, H. L. A. Hart, Saint Thomas Aquinas, even Fuller himself and to speculate what their decision in Riggs might be in light of the theories of law they propose.
7. Legal Positivism
There are, for example, two essays by H. L. A. Hart on "A More Recent Positivist Conception of the Law" and "Positivism and the Separation of Law and Morals" to which Lon Fuller (again) has a reply, called, "Positivism and Fidelity to Law." Hart seems to be opposed to Fuller's view that law, to be law at all, has to meet some minimal set of moral requirements. You notice, too, that there's an essay which appears to put Hart's view into some sort of perspective by one of the editors of the LAW book, Jules Coleman and Brian Leiter on "Legal Postivism." You decide that a quick read, at least a skim, of these four essays is a "must" for someone in your position and so you decide to give yourself a few hours of "reading time" before putting pen to paper.
8. Dworkin's "Third Theory of Law"
There also appears to be a theory of law advanced by Ronald Dworkin which falls somewhere in-between the views of Fuller and Hart. Or so it seems to someone in your esteemed position. "That looks like a 'must read.'" Dworkin's theory is neatly captured in two essays included in the Philosophy of Law book: "The Model of Rules" (already mentioned) and "'Integrity in Law." Why you have so much access to a Philosophy of Law Class taught at Brandeis in the early years of the 21st century and nothing else beyond the year of 1890 is hard (for you) to fathom, but you decide not to dwell on this odd wrinkle in time because you are truly grateful to have all the help that you can get with this opinion you have to write.
9. The Internal Morality of Law
You notice, too, after you retire to your chambers that there are several other articles in the book from Philosophy of Law text that might also come in handy. There's an essay by Fuller with the title "Eight Ways to Fail to Make Law" that sounds intriguing and also looks short. "Short," you mumble under your breath, "short is good," and you make a mental note to read that, too.
10. Natural Law Theory
So, too, you discover that Brian Bix has an essay on "Natural Law Theory," pp. 8-19 As both Thoreau and Martin Luther King seem to have believed, the only obligation a person has is to do what he or she thinks is right and natural law theory would appear to point the way towards "doing the right thing." A quick look at this essay may help you in this regard and, you tell yourself, even if you end up rejecting natural law theory, that rejection can only help to make your own position that much clearer and available to view and may even help you grasp what Dworkin is saying more clearly. Still all this seems to mount up to a whole lot of reading. "Then again," you tell yourself, "you haven't looked so forward to sitting down and reading since you were nine years old!"
11. Conclusion
So there you have it: you are to write an opinion for or against awarding Elmer his inheritance, think of the several strong objections that might be made to your argument and respond to them. In the course of writing your opinion, offer not only what you believe to be the best defense of your decision, but the clearest expression of that theory of law which best supports your line of reasoning, set it against at least one "other" theory of law, and respond to it.
GOOD LUCK!
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