CRN 30072/30073
RC 421
Spring 2007 MW 1130AM-1250PM
E-mail: perringc at
dowling.edu [All email to me should have
"PHL3132" in the subject line]
Office Phone:
244-3349
Office: 330B RC
(next to the computer lab)
Office Hours: MTW 100-230PM or by appointment
Required Textbook: Philosophical Problems in the Law 4th Edition, David M. Adams, Thompson-Wadsworth, 2005 [Available at Dowling bookstore and through online booksellers.]
Suggested introduction to philosophy of law to use as preparation for the course:
Philosophy
of Law: A Very Short Introduction.
Raymond Wacks.
Note that if you order
books online less than 2 weeks before the start of the course, you should use
Expedited Shipping.
·
Students
will examine controversial issues in the law as a way to understand the debates
over the ultimate justification of legal authority. These will include topics such as the right
to property, the legality of slavery, rape laws, abortion laws, religious freedom
and other freedom of expression, assisted suicide, affirmative action, the
death penalty, and the insanity defense.
These will provide material for more theoretical debates between legal
positivism, natural law, and legal constructivism.
·
Students
will understand the philosophical basis of law.
They will gain skills of articulating the issues in the foundations of
law, defending their views, and assessing the plausibility of alternative
views. They will also be able to analyze
legal cases to determine the philosophical assumptions with which legal
decisions are made.
·
Students
will write two 1600-word papers on particular cases and write a longer
3200-word term paper on central issues in the field.
·
Students will do a presentation on a
legal case from the textbook or other topic, and providing a hand-out
summarizing the relevant details for the class.
·
Students will engage in group-discussion,
and will articulate their own questions and opinions concerning the
philosophical basis of law with the rest of the class.
·
The
skills and knowledge required in coming to grasp the philosophical basis of law
integrate well with both the rest of philosophy and also political
science. Naturally, as in most subjects,
critical thinking, analysis and argumentative skills are central. More particularly, the philosophy of law
helps students to assess the authority of the state to rule its citizens, and
this is central to most political science and many areas in ethics and
political philosophy.
Reading
assignments: Each class, a
few articles from Philosophical Problems in the Law will be
assigned. These readings are
philosophically sophisticated and you must do the reading ahead of time to be
prepared for class discussion. You
should be familiar with the main ideas in each assigned reading, and you should
make notes of those parts that are hard to follow. My policy will be to explain the readings to
those who have read them and are ready to discuss them, not to explain them to
students have not done the reading. To a
large extent, the course proceeds cumulatively and understanding the readings
of the early weeks will be essential to understanding the discussion during
later weeks.
Presentations. You
should do a 10-minute presentation, setting out the details of the case you
choose and discussing how the controversial aspects of the case are relevant to
the course. You should leave time in
your presentation for class discussion, and you should provide the class with a
handout so people can recall the details easily. If you miss your presentation, you will need
to choose a different one for a later date.
If you then fail to do the second one presentations,
you get a zero grade for this portion of the course.
A good presentation
will explain the basic ideas of a case clearly to the class. You can use Powerpoint,
but it is not required. If you do use Powerpoint, you should not simply read from the slides you
have prepared. An excellent presentation
will explore one or more philosophical issues arising from the case.
I will use the
rubric available at
http://www.phschool.com/professional_development/rubrics/oral_presentation.pdf
to assess your presentation.
Attendance: If you need to miss a class, you should
notify me by phone or email before the class.
Your attendance grade will suffer significantly if you miss classes
without excuse. To get full credit for attendance,
you need to be in class on time, be there for the full class time, and you need
to be awake and paying attention to the class.
If you have to miss class for a legitimate reason, you should provide me
with some evidence for your excuse. If
you miss class, you can make up by writing 900 words summarizing one or
more of the assigned readings.
Participation: You should participate in class discussion, both answering questions that are put to the class, raising questions when you do not fully understand an idea or a part of the text, or what someone in the class says. We will use Blackboard for course discussion and other communication, and you can improve your participation grade by contributing to the discussion board there.
Keep copies of all your writing. For any paper or piece of writing, there is a chance that I will mislay it. So you must keep a copy of everything that you give me. If your copy is electronic, you should keep your copy in at least 3 different places (floppy disk, hard drive, memory card, jump drive, etc) in order to minimize the danger of losing it in a computer crash or hardware failure. If you give me something handwritten, you should photocopy or scan it first.
Email. You should email me using your Dowling email account. Email sent from other non-Dowling accounts are likely to go straight to my spam-folder and I will never see them. If you want acknowledgement of your email, please ask for it. (There are instructions about how to activate your Dowling email at email.dowling.edu, and if you have difficulties, you should consult the Dowling Computer Help Desk.)
Due dates: Work is due on the day stated in the
schedule. You can give it to me in
class, in my office if I am there, in my mailbox, or by e-mail or using
turnitin.com by midnight. If you are
unable to make a deadline, you should tell me and explain why. If your work is late without excuse, you will
be penalized. For the first two papers,
the penalty will be 1% of the paper grade for each day late. For the final paper, the penalty is 5% per
day, and I will not accept any papers more than 2 days late.
Plagiarism
detection and prevention:
All papers should be submitted via Turnitin.com or sent to me by email as an
attachment in MS Word or RTF. I cannot
accept files in MS Works. If you cannot
do this, then you can give me a disk with your work on it. I will give you information about how to use
Turnitin.com. Note that I view any form
of academic dishonesty very seriously, and if I find that you have engaged in
any significant form of plagiarism or cheating I will fail you in this course
and report my action to the Dean of Students.
Grade breakdown
Attendance: 5%
Participation: 5%
Presentation: 10%
Paper 1: 20%
Paper 2: 20%
Paper 3: 40%
· Paper 1. Due Feb 21. (at least 1600 words and1 external reference)
1.
Discuss 2 of the following, Scalia, R. Dworkin
and Bork and one of the legal cases (Smith, Trinity or Griswold) Consider
whether there is a right to privacy.
2.
Comparing Hart with Devlin or G. Dworkin
discuss whether laws against homosexual behavior should be permissible.
3. Should pornography be protected as a form of speech? Discuss Feinberg and MacKinnon.
· Paper 2 Due March 21 (at least 1600 words and 2 external references)
1.
Thomas Nagel defends affirmative action.
Spell out his argument, and contrast it with that of someone who is
against affirmative action. Discuss
which arguments are better justified.
2.
Cass Sunstein defends gay marriage on the
ground that to make it illegal is to sustain the mechanism that keeps
patriarchy in place. Examine his
argument, and the related judicial argument in Baehr
v. Lewin. Can
this approach to defending the unconstitutionality of bans on gay marriage be
given a firm defense?
3. Martha Minow and
Richard Wassertrom examine what we should mean by
"equal treatment" in legal cases concerning gender, race, and
equality. Set out some of their central
views and examine them carefully, setting out their strengths and weaknesses.
4. In the Michael H v Gerald D case, set out both the majority and dissenting opinions, and then discuss which are more plausible.
· Paper 3 Due May 9 (at least 3200 words and 3 external references)
I strongly
recommend you write a draft of your paper.
The draft should be written out in proper English, not in note
form. It should be at least 1000 words,
preferably closer to 2000 words. Please
get your draft to me by April 23.
Papers must show
an understanding of the papers they discuss.
When discussing external sources, they must do more than just briefly
refer to them; they must make them clearly relevant to the paper. Grammar and style are important. You should write clearly. Use simple words and short sentences when you
can. Each paragraph should have one main
point. The paper should be well
structured, and it is a good idea to divide it into different sections, each with
its own title. Your first paragraph
should explain what you will be arguing in your paper, and how you will make
the argument. Spell out what your claims
are, and whenever you make a claim, do as much as you can to justify it. It is essential to show that you understand
the basic issues, and then you should aim to show an appreciation of the more
subtle and complex points.
Answer one question.
1.
During WWII, terrible actions were perfomed in
2.
[Difficult]. On 29 September 2006, the House
and Senate approved the Military Commissions Act of 2006 (MCA), a bill that
would suspend habeas corpus for any alien determined to be an "unlawful
enemy combatant" engaged in hostilities or having supported hostilities
against the United States by a vote of 65-34.
Discuss the origin of habeas corpus, its justification, and the
reasonableness of suspending it. Be sure
to include substantive discussion of at least 2 of the articles from the course
textbook.
3.
The law has many critics, in Critical Legal Studies, Feminist Legal
Theory, and Critical Race Theory. Select
one of these and discuss how successful these criticisms are. It will help your paper to use some
particular cases in your argument as illustrations. Be sure to include substantive discussion of
at least 2 of the articles from the course textbook.
4.
Should there be a separate defense available to defendants for crimes
committed when in a disordered mental state?
What sorts of mental problems should serve as mitigating factors, and
which should not? You do not need to
consider the whole of human psychology, but you should make a contrast between
good excuses and bad excuses. Be sure to
include substantive discussion of at least 2 of the articles from the course
textbook.
5.
Does retribution make sense as a justification for punishment of
criminals, or is it just an excuse for revenge?
Be sure to include substantive discussion of at least 2 of the articles
from the course textbook.
Note: You should use APA format for citations and references. Your papers should not include more than 25% quotation from other sources. Any lengthy quotation should be summarized and explained. If you do not follow these guidelines, your grade will be significantly penalized.
|
Date |
Overviews by David M. Adams |
Philosophy |
Cases for Presentations |
|
1/29 |
Introduction |
|
|
|
1/31 |
Legal Reasoning and Constitutional Interpretation (165) |
Antonin Scalia, The Role of U.S. Federal Courts in Interpreting the Constitution. (178) Ronald A. Dworkin, Comment on Scalia. (184) |
Smith v. U.S. (172) Church of the Holy Trinity v. U.S. (176) |
|
2/5 |
|
Robert Bork, The Right of Privacy. (188) |
Griswold v. Connecticut. (254) |
|
2/7 Give out first paper topics. |
Boundaries of the Law: Freedom of Expression and Enforcing Morality. (193) |
John Stuart Mill, On Liberty. (200) Patrick Devlin, The Enforcement of Morals. (202) H. L. A. Hart, Law, Liberty, and Morality. (207) |
South Florida Free Beaches, Inc., v. City of Miami, Florida.(199) Texas v. Johnson. (268) |
|
2/12 |
|
Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality. (209) Joel Feinberg, A Ride on the Bus. (221) |
Cohen v. California. (217) Michael A. Newdow v. United States of America. (223) |
|
2/14 |
Obscenity and Pornography (230) |
Joel Feinberg, Obscenity as Pornography. (241) Catherine MacKinnon, Pornography: On Morality and Politics. (248) |
Ashcroft v. The Free Speech Coalition. (233) American Booksellers Association v. Hudnut. (237) |
|
2/21 |
Equal Protection Law, Racial Discrimination, and Affirmative Action. (277) |
Peter Westen, Puzzles About Equality. (293) Naomi Zack, What Is Race? (295) |
Barbara Grutter v. Lee Bollinger, et al. (284) |
|
2/26 |
|
Thomas Nagel, A Defense of Affirmative Action. (300) Shelby Steele, Affirmative Action (303) |
House Resolution 40: Reparations to African Americans. (308) Cato v. U.S. (309) |
|
2/28 |
Sexual Orientation, Gender, and Equality (314) |
Cass R. Sunstein, Homosexuality and the Constitution (322) |
Baehr v. Lewin. (319) |
|
3/5 Give out second paper topics |
|
Martha Minow, The Dilemma of Difference (327) Richard Wasserstrom, The Assimilationist Ideal (332) |
Michael M. v. Superior Court of Sonoma County (378) |
|
3/7 |
Equality, Parenthood, and Family Law (346) |
J. M. Balkin, A Critique of Michael H. v. Gerald D. (353) Janet L. Dolgin, Family Law in Transition. (356) Alexander Morgan Capron, Too Many Parents. (363) |
Michael H. v. Gerald D. (349) Johnson v. Calvert (359) |
|
3/12 |
Philosophy and the Law. (3) |
|
Herman Melville, Billy Budd (153) L. Fuller, The Problem of the Grudge Informer. (159) |
|
3/14 |
What Is Law? (15) |
Robert H. Jackson, Opening Address for the United States, Nuremberg Trials. (22) Charles E. Wyzanski, Jr., Nuremberg: A Fair Trial? (28) |
Trial of Border Guards. (19) |
|
3/19 |
|
Statement of President Slobodan Milosevic on the Illegitimacy of the Hague "Tribunal." (34) |
Prosecutor v. Slobodan Milosevic.(36) |
|
3/21 |
Classical Theories of Law. (40) |
Carlos Nino, Legality and Justice: A Fictional Case. (46) John Austin, Legal Positivism. (49) Brian Bix, Inclusive Legal Positivism and the Nature of Jurisprudential Debate. (54) |
|
|
3/26 |
|
H. L. A. Hart, Positivism and the Separation of Law and Morals. (61) Thomas Aquinas, What Is Law? From Summa Theologiae. (76) Martin Luther King, Jr., Letter from Birmingham Jail. (78) |
Riggs et al. v. Palmer.(149) |
|
3/28 Give out final paper topics |
Modern Theories of Law. (83) |
Lon L. Fuller, Positivism and Fidelity to Law. (70) |
|
|
4/9 |
|
Oliver Wendell Holmes, The Path of the Law. (89) Mark Tushnet, Critical Legal Studies: An Introduction to Its Origins and Underpinnings. (99) Andrew Altman, Critical Legal Studies and Liberalism. (105) |
|
|
4/11 |
|
Visiting Speaker: Tatiana Patrone "Retribution: Kantian Justifications of Punishment." |
|
|
4/16 |
Contemporary Perspectives (120) |
Margaret Jane Radin, The Pragmatist and the Feminist. (134) Angela P. Harris, Race and Essentialism in Feminist Legal Theory. (139) Richard Delgado and Jean Stefancic, Hallmark Critical Race Theory Themes. (143) |
|
|
4/18 |
What Is a Crime? (385) |
Douglas N. Husak, Intent. (394) Sanford H. Kadish, The Criminal Law and the Luck of the Draw (397) |
People v. Dlugash. (391). The Case of the Dog "Provetie." (503) |
|
4/23 |
Justification and Excuse (406) |
Paul H. Robinson, The Bomb Thief and the Theory of Justification Defenses (415) Cathryn Jo Rosen, The Battered Woman's Defense (423) |
State v. Leidholm (421) State v. Cameron (430) |
|
4/25 |
|
Norval Morris, The Abolition of the Insanity Defense. (433) Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered (437) |
|
|
4/30 |
Punishment and Responsibility (442) |
David Dolinko, The Future of Punishment (449) Jeremy Bentham, A Utilitarian Theory of Punishment (452) |
Lockyer v. Andrade. (446) Goldschmitt v. Florida (502) |
|
5/2 |
|
Michael Moore, The Argument for Retributivism (456) H. L. A Hart, Punishment and Responsibility (461) |
Payne v. |
|
5/7 |
The Death Penalty (466) |
Ernest van den Haag, The Death Penalty Once More (476) |
Atkins v. Virginia (471) Coker v. Georgia (509) |
|
5/9 |
|
H. A. Bedau, A Reply to van den Haag (482) Randall Kennedy, Homicide, Race, and Capital Punishment (494) |
McCleskey v. Kemp (490) Gregg v. Georgia (512) |
|
5/14 |
Course Wrap Up |
|
|
Useful Internet Resources:
Internet Encyclopedia of Philosophy
· Natural Law by Kenneth Einar Himma
Stanford Encyclopedia of Philosophy
· The Nature of Law by
Andrei Marmor
· Legal Obligation and
Authority by Leslie Green
· Punishment by Hugo Adam
Bedau
·
Legal Punishment by
Antony Duff
·
Civil Rights by Andrew
Altman
Other Web
Pages