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PHILOSOPHY
OF LAW

PHIL 22B
Spring 2000

COURSE PAGE INDEX

Introduction -- There is more to murder than killing someone.

Twenty-One Legal Puzzlers -- Test your legal intuitions. Twenty-one puzzlers, some actual cases, some hypothetical, all touching on key areas covered in the course to whet your legal appetite. In attempting to resolve a particular puzzler, think how you yourself would decide the case rather than how you would predict the case would be decided in a court of law.

The Case of the Speluncean Explorers -- The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged. . . They bring a petition of error before this Court. The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.. . . .

A College Student and a Rat Make for an Explosive Issue -- Robert Walsh took a job with the General Machine Company, which, among other businesses, owned and operated a number of laundromats in Chicago. Walsh took the job in order to make some extra money for his college tuition. His job was to clean the coin-operated machines. One of the more effective cleansing agents was gasoline and Walsh was using gasoline to clean the machines at one of the laundromats during a cold spell. The room in which he was working was not very large, about eight by ten feet in area, and there was a gas heater installed at the base of the wall opposite the washers and dryers. This heater was lighted at the time with an open flame. While Walsh was engaged in his cleaning, a rat emerged from one of the machines. . . .

A Good Samaritan Tries to Help Only to Be Shot in the Foot -- Richard Hunt ran out of gas while driving his truck down Route 3 some eight miles south of the town of Plymouth, Massachusetts. He then parked the truck on the side of the road but the rear end (of the truck) was sticking dangerously out into the roadway. Hunt did not set out flares or any other warning signals. He did not turn on his hazard lights or switch on his left blinker. He took an empty gas can from the back of his truck and left in search of gasolene. . . .

Bernhard Goetz and the Criminal Law -- A few days before Christmas, 1984, a slightly built man named Bernhard Goetz entered a subway car in New York City. He sat down next to four black youths. They are a somewhat boisterous lot and the 15 or 20 other passengers have moved to the other end of the subway car. One of the four, Troy Canty, asked Goetz how he was doing. Then Canty and perhaps one of the others asked Goetz for five dollars. Goetz took out a .38 caliber Smith and Wesson revolver and fired four shots at each of the four youths. . . .

Late Breaking Legal News -- Microsoft Replies to Plaintiffs' Proposed Conclusions of Law, February 1, 2000: Read the [ MS original] and the [ MS Reply in Response to States ] Amicus Briefs were also filed on Tuesday, Feb. 1, 2000 by, among others, Association for Competitive Technology which filed an Amicus Brief for Microsoft; and Software and Information Industry Association which filed an Amicus Brief for the Department of Justice; as well as Robert Bork who filed an Amicus Brief for the Plaintiff States. If you wish to discuss the filings ONLINE you can go to the Bulletin Board created by Harvard by clicking HERE . Also in the News (1/27/00) : "Conservative Think Tank Recommends Microsoft Breakup." On Jan. 25 Plaintiffs Responded to Microsoft Proposed Conclusions of Law, reported in the News also on the 25th as"Plaintiff States Still Split on Remedy Questions -- Not All Endorse Breakup." Also reported in the News on the 25th : "Microsoft Java Injunction Was Reinstated, Based in Contract, not Copyright." Prior to these events Microsoft submitted its Proposed Conclusions of Law on Jan. 18, 2000 after the government plaintiffs filed their proposed conclusions of law on December 6th. Links and local copies are posted on the Microsoft Case site.
The next step? Parties will prepare responses and make oral arguments before Judge Jackson. If there is no settlement, Judge Jackson's verdict and hearings on remedy will follow.

  • Feb. 22, 2000, Oral argument on conclusions of law

In prior developments, news that the government planned to demand a breakup of Microsoft was broken by USA Today and confirmed in a story by the Washington Post.

Course Description -- Topics and areas of the law covered in the course

Texts -- Books to be purchased for the course..

Course Requirements -- Writing assignments, class participation, grading procedures, examinations, office hours, etc.

Syllabus -- Reading and writing assignments broken down week by week. FIRST FOUR WEEKS NOW ONLINE.

Paper Topics -- Paper topics will always be posted at least ten days before a paper is due.

Course Progress Updates -- Summaries of topics covered in each class session, posted at end of each week

Class Online Forum -- NOTE: Click here and you'll be directed to a welcome page to create your own account for the Class Bulletin Board. When you're ready, click on the button that says "Create Account" and you'll be led through the process of choosing an ID and a password. In order to use this forum, you have to register. It is very simple. Just follow the directions for "New Users," choosing a username and password.

Class List -- Here you'll find the names asnd e-mail addresses of everyone who is currently entrollled in PHIL 22B.

Philosophy in Preparation for Law School -- A recent comprehensive study of college students' scores on major tests used for admission to graduate and professional schools shows that students majoring in Philosophy received scores substantially higher than the average on each of the tests studied. The performance of Philosophy Majors on all three tests was remarkable: Philosophy Majors received higher scores on the LSAT, for instance, than students in all other humanities areas, and higher scores than all social and natural science majors except economics and mathematics, and higher scores than all applied majors.

Complete Sample LSAT -- Download a complete sample LSAT You will need Adobe Acrobat Reader 3.0 to view and print the test. If you do not already have the reader installed on your computer, click on the icon below to download the Acrobat Reader for free.

FindLaw -- FindLaw offers an array of free resources and tools for students.

Duhaime's Law Dictionary -- Clear, concise definitions of legal terms:

A - B - C - D - E - F - G - H - I
J - K - L - M - N - O - P - Q
R - S - T - U - V - W - X - Y - Z

1999 U.S. News Rankings -- 1999 Law School Rankings.

The On-Line Law School Locator -- The Boston College Law School Locator lists the 25th to 75th percentile LSAT scores and GPA ranges of first year classes at accredited law schools. The Locator can help you identify schools where your scores and grades are most competitve for admission and help you gauge your chances of admission at a particular school.

The Law School Admission Test (LSAT) -- The LSAT is a half-day standardized test required for admission to all 196 law schools that are members of the Law School Admission Council (LSAC or Law Services). It provides a standard measure of reading and verbal reasoning skills that law schools can use as one of several factors in assessing applicants. The test is administered four times a year at hundreds of locations around the world.

Pre-Law Handbook: 1999-2000 -- Regardless of some of the press it receives, the law is a noble pursuit and an honorable profession. But you must be sure that it is the career path for you. The University of Richmond's Pre-Law Handbook is designed to assist you in determining whether law school is the right choice for you; preparing for law school as an undergraduate; and applying to law school. What follows is an attempt to provide extensive and accurate information about law school and the legal profession, complete with links to a variety of web-based resources.

Internet Legal Resource Guide -- A categorized index of more than 4000 select web sites in 238 nations, islands, and territories, as well as more than 850 locally stored web pages and downloadable files, this site was established to serve as a comprehensive resource of the information available on the Internet concerning law and the legal profession, with an emphasis on the United States of America. Designed for everyone, lay persons and legal scholars alike, it is quality controlled to include only the most substantive legal resources online. The selection criteria are predicated on two principles: the extent to which the resource is unique, as well as the relative value of the information it provides.

American Bar Association -- The American Bar Association's General Information Center. Here, you'll learn about the structure and governance of the ABA, keep up on ABA news and their monthly membership magazine, as well as learn about membership information and services.

The Truth About Law School -- A candid article on attending law school and what follows graduation.

Understanding Law School -- Tries to ease the pain by giving you an understanding of law school.

Hiatt Career Center's On-Line Law Menu: Applying to Law School -- Addresses, among many others, such questions as "Is law school a good choice for me?" - "What else can I do with my liberal arts degree besides law or medicine?" - "What can I do with a law degree?" - "When should I apply?" - "How soon will I hear back from law schools?" - "When should I take the LSAT?" - "Do law schools mind if I take time off?" - "How can I make myself a more competitive candidate?" - "What majors do law schools prefer?" - "How can Hiatt help me?" and such matters as Thinking About Getting Started, The LSAT, Choosing Schools, The Complete Application, Law School Report Form, Recommendations, Personal Statement, Dean's Letter, Transcripts, Paying for Law School, and Making The Final Decision. To schedule an appointment with a pre-law advisor call 736-3618.

Do I Want To Be A Lawyer? -- One way of determining whether you may want to be a lawyer is to look at the type of skills that a person must develop and ultimately become proficient at in order to be a competent lawyer in any area.

The Reality of Law School -- The standard fare of law school.

Thoughts On Legal Education -- Acquaints students with the background required for the study of law, the skills which a legal education attempts to develop and dispels common misconceptions about preparation for law school.

More Law School Information on the Application Procedure -- Explains the overall chances for admissions, shows you how law schools use the application to select applicants and then explains how you can use this knowledge to prepare the best application possible Also, a time-line of critical steps plus an "Applicant Support Guide" and the "Simulated Admissions Review Service" with suggestions on how you can improve your application.

Law School Recommendation Letters -- Most Deans of Admissions read each recommendation with three questions in mind: 1) How well does the writer know the applicant and the applicant's academic record? 2) What does the writer have to say about the applicant's abilities and characteristics which are important for success in law school and the profession? 3) In the final analysis, how enthusiastic is the writer's support for the candidate's admission to this particular law school?

Law Reviews -- Articles from law reviews.

Legal News -- Articles from legal newspapers, magazines & newsletters.

Get a Case -- State and federal cases.

Federal Case Law -- Judicial decisions from all federal court levels.

State Case Law -- State high court and appellate decisions.

Cases by topic -- Search cases by topic and/or theme.

Federal Code -- Federal code, U.S. Constitution & court rules .

Federal Regulations -- Federal regulations, agency opinions & US Attorney General Opinions.

State Codes -- Statutory laws, court rules from all states & Attorneys General opinions from all states .

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COURSE DESCRIPTION

Spring 2000:

      The course will cover a number of central topics in the philosophy of law: the nature of criminal responsibility (what is a crime?), necessity and duress, causation in the law, negligence and liability, criminal attempts, omissions and the duty to rescue, insanity and excuse, the aims and limits of criminal punishment, and the nature and limits of law.

       An effort will be made to get at the principles underlying differing judicial judgments about particular cases as well as to answer more general questions: Under what conditions should a person be held responsible for his or her acts? Under what conditions may one be excused? Suppose I simply make a mistake? Or was merely careless? Or was mentally unstable? Is it fair to punish me for a harm I caused but did not intend? And if I fail to commit a crime, should I be punished less severely than if I had succeeded?

        Specific topics will include sleepwalking, persons subject to post-hypnotic suggestion, faith healers, misadministered poisons, misfired bullets, and foiled attempts. Also: felony-murder, strict criminal liability, and a brief excursus on whether the law is more or less like the rules of a game (e.g. chess or poker), cooking recipes, or the Ten Commandments.

        For a more detailed introduction to the course, click here.

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TEXTS FOR COURSE

1. Joel Feinberg and Jules Coleman (eds.),
PHILOSOPHY OF LAW Sixth Edition, (Wadsworth)

    Table of Contents
    Preface.


    I. LAW.

    Natural Law Theory.

  • Bix: Natural Law Theory.
  • Dimock: The Natural Law Theory of St. Thomas Aquinas.
  • The Challenge of Legal Positivism.

  • Austin: A Positivist Conception of Law.

  • Hart: Law as the Union of Primary and Secondary Rules.

  • Hart: Positivism and the Separation of Law and Morals.

  • Fuller: Positivism and Fidelity to Law-A Reply to Professor Hart.
  • Fuller: Eight Ways to Fail to Make Law.
  • Coleman: Negative and Positive Positivism.

    Law From the Perspective of the Judge.

  • Feinberg: The Dilemmas of Judges Who Must Interpret ''Immoral Laws''.
  • Dworkin: The Model of Rules.
  • Riggs v. Palmer, Court of Appeals of New York, 1889.
  • Mackie: The Third Theory of Law.
  • Holmes: The Path of the Law.
  • Frank: Legal Realism.
  • Kelman: Interpretive Construction in the Substantive Criminal Law.

    The Moral Obligation to Obey the Law.

  • Plato: The Crito.
  • King: Letter From a Birmingham Jail
  • King: from Why We Can't Wait.
  • Luban: Difference Made Legal: The Court and Dr. King.


    II. LIBERTY.

    The Case for Self-Determination.

  • Mill: The Liberal Argument from On Liberty.

    Challenges to Self-Determinism.

  • Dworkin: Paternalism.

    Constitutional Privacy.

  • Griswold v. Connecticut, United States Supreme Court, 1965.
  • Roe v. Wade, United States Supreme Court, 1973.
  • Planned Parenthood of S. E. Pennsylvania v. Casey, 1992.
  • Bowers v. Hardwick, United States Supreme Court, 1986.

    Freedom of Expression and Its Limits.

  • Feinberg: Limits to the Free Expression of Opinion.
  • Cohen v. California, United States Supreme Court, 1971.
  • Village of Skokie v. National Socialist Party of America, Supreme Court of Illinois, 1978.
  • Texas v. Johnson, United States Supreme Court, 1989.
  • Grey: Civil Rights v. Civil Liberties: The Case of Discriminatory Verbal Harassment.

    Principles of Constitutional Interpretation.

  • Bork: The Right of Privacy: The Constitution of a Constitutional Time Bomb.
  • Ely: Discovering Fundamental Values.
  • Lyons: Constitutional Interpretation and Original Meaning.


    III. JUSTICE.

    The Machinery of Justice: Three Sample Procedural Problems.

  • Langbein: Torture and Plea Bargaining.
  • Greenawalt: Jury Nullification.
  • Dworkin: The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime.

    Justice and Compensation.

  • Coleman/Ripstein: Mischief and Misfortune.
  • Perry: Loss, Agency and Responsibility for Outcomes: Three Conceptions of Corrective Justice.

    Justice and Contract.

  • Kronman: Contract Law and Distributive Justice.
  • Fox: Babies for Sale: Reflections on the Baby M Case.
  • Steinbock: Surrogate Motherhood as Prenatal Adoption.

    Justice, Affirmative Action, and Racial Quotas.

  • Nagel: Equal Treatment and Compensatory Discrimination.
  • Hill: The Message of Affirmative Action.
  • California Constitution, Article I sec. 31.

    Inequality and Gender.

  • Scheppele: The Reasonable Woman.
  • State v. Rusk, Court of Appeals of Maryland, 1981.
  • Regina v. Morgan, House of Lords, 1976.
  • State v. Kelly, Supreme Court of New Jersey, 1984.
  • Michael M. v. Superior Court of Sonoma County, United States Supreme Court, 1981.
  • Green: Sexuality, Authenticity, and Modernity.


    IV. RESPONSIBILITY.

    Responsibility for Results.

  • Perry: The Impossibility of General Strict Liability.
  • Hart/Honore: Causation and Responsibility.
  • Thomson: The Decline of Cause.
  • Parker: Blame, Punishment, and the Role of Result.
  • Palsgraf v. The Long Island Railroad Co., New York Court of Appeals, 1928.
  • Summers v. Tice, Supreme Court of California, 1948.
  • Sindell v. Abbott Laboratories, Supreme Court of California, 1980.

    Responsibility for Nonintervention.

  • Macaulay: Notes on the Indian Penal Code.
  • Weinrib: The Case for a Duty to Rescue.

    Some Criminal Defenses.

  • People v. Young, New York Court of Appeals, 1962.
  • Fuller: The Case of the Speluncean Explorers.
  • Kadish/Schulhofer: The Case of Lady Eldon's French Lace.
  • The McNaghten Rules, House of Lords, 1843.
  • The Insanity Defense, The American Law Institute.
  • State v. Guido, Supreme Court, 1963.
  • Feinberg: What Is So Special About Mental Illness?


    V. PUNISHMENT.

    What Is Legal Punishment?

  • Feinberg: The Expressive Function of Punishment.
  • Massaro: Shame, Culture, and American Criminal Law.

    What, If Anything, Justifies Legal Punishment?

  • Feinberg: The Classic Debate.
  • Ten: Fantastic Counterexamples and the Utilitarian Theory.
  • Moore: The Moral Worth of Retribution.
  • Shafer-Landau: The Failure of Retributivism.

  • Victims' Rights: Restitution or Vengeance?

  • Mackie: Retributivism: A Test Case for Ethical Objectivity.
  • Murphy: Getting Even: The Role of the Victim.
  • Payne v. Tennessee, United States Supreme Court, 1990.

    The Death Penalty.

  • Furman v. Georgia United States Supreme Court, 1972.
  • Woodson v. North Carolina, United States Supreme Court, 1976.
  • Van den Haag: In Defense of the Death Penalty: A Practical and Moral Analysis.
  • Nathanson: Should We Execute Those Who Deserve to Die?
  • 2. Leo Katz, BAD ACTS AND GUILTY MINDS:
    Conundrums of the Criminal Law, (Studies in Crime and Justice),
    University of Chicago Press, 1988 Sixth Edition, (Wadsworth)

    3. Alan Dershowitz, THE BEST DEFENSE,
    Random House, 1983

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COURSE REQUIREMENTS

CLASS TIMES:

(1) The course will meet on Tuesdays and Fridays from 12:10 PM to 1:30 PM in Golding 110.

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PAPERS:

(1) Four papers are required on topics growing out of the readings and class discussions.

(2) The papers should be about 7 pages in length, preferably typewritten.

(3) Paper topics will be available at least ten (10) days before a paper is due. It is wise to make a copy of a paper before handing in the original. If you are working on a computer, make a back-up. .

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EXAMINATIONS:

(1) There will be one quiz in class.

(2) There will be no other written examinations, final or otherwise.

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ONLINE FORUM:

(1) A Bulletin Board has been created for the course to facilitate online conversation on legal topics of note. To find your way to the Bulletin Board, you can click HERE and you'll be directed to a welcome page to create your own account for the Class Bulletin Board. When you're ready, click on the button that says "Create Account" and you'll be led through the process of choosing an ID and a password. In order to use this forum, you have to register. It is very simple. Just follow the directions for "New Users," choosing a username and password. 

(2) You may also keep a log. The log should not be used for general note-taking or for jotting down quotations (although you may wish to use a separate note-book for these tasks) but for making commentaries on the readings and, most critically, the puzzlers and cases.

(3) Questions will also arise throughout the semester, questions for which there may not necessarily be any, easy or obvious answers, and these questions will be singled-out and identified as questions for the Bulletin Board and logs. You should also feel free to respond to the answers and commentaries of other students in the class.

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ATTENDANCE:

(1) Attendance is required. You are allowed two unexcused absences. Any further absences will have an impact on your final grade.

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GRADING:

(1) Grading will be broken down as follows: 30% for your strongest essay, 25% for your next best effort, 20% for your next best effort after that, and 15% for the one which is least successful of the four.

(2) . Work in the log or journal and/or on the Bulletin Board will count for 5% and the quiz will make up for the remaining 5%.

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COURSE ASSISTANT:

(1) A course assistant has been assigned to this class. He will be primarily responsible for reading the papers and making comments on them. I shall read through ALL the papers and be responsible for grading each and every one of them.

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OFFICE HOURS

(1) I will hold office hours on Tuesdays and Fridays from 3:00 p.m. until 4:00 p.m. and by appointment.

(2) My office is located in RABB, Room 306. If you wish to leave messages for me, you may do so at the Philosophy Department Office, RABB 305 or on my voice mail: 736-2787

(3) My e-mail address is teuber@binah.cc.brandeis.edu.

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Page last edited: Fenruary 1, 2000