PHILOSOPHY OF LAW

FALL 2004

“Although we may never know with certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

-Bush v. Gore, Justice Stevens’ dissenting opinion

 

“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

-Martin Luther King, Jr., “Letter from Birmingham Jail”

 

 

 

 

 

 

 

 

 

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COURSE DESCRIPTION

COURSE OBJECTIVES

ASSESSMENT TECHNIQUES

STANDARDS OF ACHIEVEMENT

LAW LINKS

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COURSE DESCRIPTION

Examination of global philosophical issues related to law and politics, focusing on the relationship between law and morality, the nature and functions of law, traditional concepts of justice, and contemporary discussions of political legitimacy.

COURSE OBJECTIVES

By faithfully completing all the reading assignments, successfully writing the three essays, and actively participating in the discussions, you should be able to do the following by the end of the semester:

  • Recognize important philosophical issues surrounding the law.
  • Explain fundamental concepts in the philosophy of law.
  • Articulate and criticize major philosophical debates about the relationship between law and morality.
  • Evaluate traditional conceptions of the nature of justice.

ASSESSMENT TECHNIQUES

This course will emphasize discussion and writing. I will regularly suggest questions pertaining to the material we will be discussing in the following class. Students should come to class prepared to address these questions. Always bring your books to class.

There will be three three-page critical essays (approximately 1000 words each), one presentation/performance, a midterm, and a final exam. Each paper is worth 10% of your final grade; the oral performance, 10%; participation, 20%; the midterm, 20%; and the final, 20%.

All essays must be typed and double-spaced, with margins of 1.25 inches. Three pages means three full pages. Unexcused late work will be penalized 10% per day. All essays are due at the beginning of the class period. Due dates for the essays are listed in the course schedule, below. Further details on the nature of these essays, as well as of the midterm and final exams, will be given in class.

This is an upper-division course. As such, it will require a great deal of work on your part. The readings are often difficult, sometimes long, and occasionally both. All essays should be polished, well-written, and persuasive. You should plan to devote 8-10 hours per week to your work in this course, in addition to the scheduled class meetings.

STANDARDS OF ACHIEVEMENT

All student work will be judged according to the following academic criteria:

  • Evidence of creative or innovative thinking.
  • Depth of critical thinking and observation.
  • Accuracy of information.
  • Organization and clarity of thoughts.
  • Fidelity of work (no plagiarism, cheating, etc.).
  • Basic writing mechanics.

SUPREME COURT OPINIONS

Every student will be assigned to a group of students later in the semester. Those students will constitute a group of Supreme Court Justices ruling on a particular issue. Each group should begin by making a 7-10 minute presentation, and will then lead the class in discussion of the issue for the rest of the period. This presentation is 10% of your grade. Every member of the group must be in class the day of the presentation. Every student will also write an opinion for the issue in question (this is the third of the three required essays), which will eventually become either the majority opinion (the decision of the court), a concurrence, or a dissent. Further information on  these presentations will be given in class.

LAST WORDS

My office hours are listed above. Please feel free to come by, call, etc., during those hours. If that doesn’t work, I would be happy to schedule an appointment at another time. Communication by email is especially welcome (moderation in this, as in all things...).

Finally, realize that it is not unusual for a course like this one to raise challenges to and doubts about some of our most cherished beliefs. It is important that each of us is sensitive to the views of those around us. At the same time, each of us should also be aware that controversial issues, arguments, and positions will be discussed in this course. If something bothers or offends you, let me know and I will do what I can.

 

UNIT I                        WHAT IS LAW? THE MORAL OBLIGATION TO OBEY THE LAW

Aug 19 Th        Introduction

Aug 24 T          Plato’s Euthyphro, Apology (read p. 3-53 in The Trials of Socrates)

Aug 26 Th        Plato’s Apology (conclusion), Crito, Phaedo, and Xenophon’s Defence (read p.

53-83, 178-84 in The Trials of Socrates)

Aug 31 T          Is there a moral obligation to obey the law?

Sep 2   Th        Civil Disobedience

Sep 7   T          Legal Reasoning          

Sep 9   Th        Legal Reasoning                                                                       First Essay Due

 

UNIT II                JUSTICE

         

Sep 14 T          U.S. Constitution; Griswold v. Connecticut (p. 354-9), Introduction to Part Two (p. 258-66)

Sep 16 Th        Liberty : Mill, Feinberg (p. 267-293)

Sep 21 T          Constitutional Privacy: Roe v. Wade, Planned Parenthood of SE Pennsylvania v. Casey (p. 359-68)

Sep 23 Th        Constitutional Privacy, cont.: Bowers v. Hardwick (p. 368-79), Roe and Casey selections

Sep 28 T          Lawrence & Garner v. Texas (hand- out); First Essay returned

Sep 30 Th        Freedom of Expression: cases (p. 395-412)

Oct 5   T          Affirmative Action (p. 433-456)   

Oct 7   Th        Inequality and Gender (p. 456-90)                                                Second Essay Due

Oct 12          Recent Developments                             

Oct 14 Th        Midterm Review                                              

Oct 19 T          MIDTERM EXAM

Oct 21 Th        NO CLASS—FALL BREAK

POLITICAL INTERLUDE

Oct 26 T          Bush v. Gore, p. 1-11 (decision and concurrence)

Oct 28 Th        Bush v. Gore, p. 11-27 (dissenting opinions)

UNIT III                     RESPONSIBILITY AND PUNISHMENT 

Nov 2 T        Responsibility and Punishment: Introduction (p. 602-11), "The Decline of Cause" (p. 642-50)
Nov 4 Th     Who's to blame? Three cases: Palsgraf, Summers, Sinndell, and Young (p. 676-700, 739-41)
Nov 9 T        Responsibility and Insanity (p. 746-60)
Nov 11 Th   Theories of Punishment: "Shame…" (p.771-99) and "The Classic Debate" (p. 799-804)
Nov 16 T     Theories of Punishment (cont.): "The Failure of Retributivism" (p. 831-41) and "Getting Even" (p. 842-53)
Nov 18 Th  Death Penalty, cases: Furman v. Georgia (p. 854-63), Woodson v. North Carolina (p. 863-73)
Nov 23 T     Death Penalty, theory: "In Defense…," "Should We…?" and "Capital Attrition" (p. 873-94)
Nov 25 Th  NO CLASS-THANKSGIVING

UNIT IV COURT IN SESSION

Nov 30 T     Supreme Court I: Ashcroft v. RaichJohnson v. Gomez, Florida v. Nixon
Christina, Angie, Brandy, Jacque, Kristi                                             Opinions Due

Dec 2 Th   Supreme Court II: Van Ogden v. Perry, McCreary County v. ACLUShepard v. U.S.
Anthony, Birdsong, Mike, Chris, John Ruark

Dec 7 T    Supreme Court III: Roper v. Simmons, Devenpeck v. Alford, Illinois v. Caballes
Joe, Jennifer, Lisa, Tanner, John Deramo

 

Dec 13-17       FINAL EXAM (TBA)

This schedule may be revised as necessary during the course of the semester.

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“It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.” 

-Dred Scott v. Sandford, Chief Justice Roger B. Taney

 

LINKS

Here are some links that you may find useful, interesting, or even both. If you have any questions about specific pages that you see here, feel free to ask me. Enjoy.

General Supremes Stuff:

http://www.supremecourtus.gov/

http://www.oyez.org/oyez/frontpage

Roe v. Wade

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113

Planned Parenthood v. Casey

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833

I pledge allegiance...

http://www.cnn.com/2002/LAW/06/26/pledge.allegiance/

Lawrence and Garner vs. Texas

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102#dissent1

http://www.cnn.com/2003/LAW/06/26/scotus.sodomy/index.html

SUPREME COURT GROUPS

Follow the link to your case. You will open a section of the Supreme Court Docket, sorted by the date your case is scheduled (October, November, December, or unscheduled). Scroll down until you find your case. Follow the links from there for more information, lower court decisions, etc. Remember that every member of your group will file one opinion, but will need to be familiar with and cast their vote in two cases.

Good luck. Please contact me with any questions or problems.

Roper v. Simmons: http://supreme.lp.findlaw.com/supreme_court/docket/2004/october.html

Shepard v. U.S., Devenpeck v. Alford, Illinois v. Caballes, Ashcroft v. Raich, Johnson v. Gomez, Florida v. Nixon: http://supreme.lp.findlaw.com/supreme_court/docket/2004/november.html

http://supreme.lp.findlaw.com/supreme_court/docket/2004/december.html

Van Ogden v. Perry and McCreary County v. ACLU are still pending