The Philosophy of Law. Classic and Contemporary Readings with Commentary.

Aus der Bibliothek von Prof. Wolfgang Haase, langj�igem Herausgeber der ANRW und des International Journal of the Classical Tradition (IJCT) / From the library of Prof. Wolfgang Haase, long-time editor of ANRW and the International Journal of the Classical Tradition (IJCT). - Einband leicht berieben, Buchr�cken leicht besto�n, Bleistiftanmerkung auf Vorsatz, sonst guter Zustand und innen sauber / binding slightly rubbed, spine slightly bumped, pencil annotation on endpaper, otherwise good condition and clean inside. - TABLE of CONTENTS CHAPTER 1 WHAT IS LAW? INTRODUCTION 1.1 THE THEORY OF NATURAL LAW INTRODUCTION READINGS Thomas Aquinas, from Summa Theologiae QUESTIONS FOR DISCUSSION John Finnis, from Natural Law and Natural Rights QUESTIONS FOR DISCUSSION Lon Fuller, from The Morality of Law QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 1.2 LEGAL POSITIVISM INTRODUCTION READINGS John Austin, from The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence QUESTIONS FOR DISCUSSION H. L. A. Hart, from The Concept of Law QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 1.3 LEGAL REALISM AND CRITICAL LEGAL STUDIES INTRODUCTION READINGS Karl Llewellyn, from The Bramble Bush, "A Realistic Jurisprudence," and The Common Law Tradition QUESTIONS FOR DISCUSSION Duncan Kennedy, "Freedom and Constraint in Adjudication: A Critical Phenomenology" QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 1.4 RONALD DWORKIN AND LAW AS INTEGRITY INTRODUCTION READINGS Ronald Dworkin, from Taking Rights Seriously QUESTIONS FOR DISCUSSION Ronald Dworkin, from Law's Empire QUESTIONS FOR DISCUSSION Frederick Schauer, from Playing By the Rules QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 1.5 CASE STUDY: THE FUGITIVE SLAVE LAWS INTRODUCTION READINGS Paul Finkelman, from Slavery in the Courtroom Excerpt from official report of the case before Chief Justice Lemuel Shaw (Massachusetts) Robert M. Cover, from Justice Accused QUESTIONS FOR DISCUSSION CHAPTER 2 LEGAL REASONING INTRODUCTION XI THE INTERPRETATION OF LEGAL TEXTS INTRODUCTION READINGS AND CASES Frederick Schauer, "Formalism" QUESTIONS FOR DISCUSSION Home Building and Loan Association v. Blaisdell Raoul Berger, from Government by Judiciary Robert Bork, from Tire Tempting of America QUESTIONS FOR DISCUSSION Paul Brest, "The Misconceived Quest for the Original Understanding" QUESTIONS FOR DISCUSSION Ronald Dworkin, "Natural Law Revisited" QUESTIONS FOR DISCUSSION United States v. Locke Richard A. Posner, "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution" QUESTIONS FOR DISCUSSION Bray v. Alexandria Women's Health Clinic National Organization for Women v. Scheidler QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READINGS 2.2 REASONING FROM PRECEDENT INTRODUCTION READINGS Cass R. Sunstein, "On Analogical Reasoning" QUESTIONS FOR DISCUSSION Larry Alexander, "Constrained by Precedent" QUESTIONS FOR DISCUSSION CASES Donoghue v. Stevenson QUESTIONS FOR DISCUSSION Planned Parenthood of Southeastern Pennsylvania v. Casey QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 2.3 CRITICAL PERSPECTIVES ON LEGAL REASONING INTRODUCTION READINGS Jerome Frank, from Law and the Modem Mind QUESTIONS FOR DISCUSSION Mark Tushnet, "Following the Rules Laid Down" QUESTIONS FOR DISCUSSION Martha Minow and Elizabeth Spelman, "In Context" QUESTIONS FOR DISCUSSION QUESTIONS FOR DISCUSSION Richard Posner, from Economic Analysis SUGGESTIONS FOR FURTHER READING of Law CHAPTER 3 THE MORAL FORCE OF LAW INTRODUCTION 3.1 IS THERE A MORAL OBLIGATION TO OBEY THE LAW? INTRODUCTION READINGS John Rawls, "Legal Obligation and the Duty of Fair Play" QUESTIONS FOR DISCUSSION A. John Simmons, "The Principle of Fair Play" QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING READINGS John Rawls, "The Justification of Civil Disobedience" QUESTIONS FOR DISCUSSION Peter Singer, from Democracy and Disobedience QUESTIONS FOR DISCUSSION CASE Walker v. Birmingham QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 3.2 CIVIL DISOBEDIENCE INTRODUCTION CHAPTER 4 THE STRUCTURE AND CONTENT OF RIGHTS INTRODUCTION 4.1 THE STRUCTURE OF RIGHTS INTRODUCTION READINGS Joel Feinberg, "The Nature and Value of Rights" QUESTIONS FOR DISCUSSION Ronald Dworkin, "Hard Cases" QUESTIONS FOR DISCUSSION Judith Jarvis Thomson, "Some Ruminations on Rights" QUESTIONS FOR DISCUSSION CASE Craig V. Boren QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 4.2 THE RIGHT TO LIBERTY INTRODUCTION READINGS AND CASES The Flarm Principle John Stuart Mill, from On Liberty QUESTIONS FOR DISCUSSION James FitzJames Stephen, from Liberty, Equality, Fraternity QUESTIONS FOR DISCUSSION Offense Joel Feinberg, from Offense to Others QUESTIONS FOR DISCUSSION New England Naturist Association v. Larsen QUESTIONS FOR DISCUSSION Paternalism John Stuart Mill, from On Liberty Gerald Dworkin, "Paternalism" QUESTIONS FOR DISCUSSION Moralism Patrick Devlin, from The Enforcement of Morals H. L. A. Hart, from Law, Liberty, and Morality Bowers v. Hardwick QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 4.3 A RIGHT TO FREE SPEECH INTRODUCTION READINGS John Stuart Mill, from On Liberty QUESTIONS FOR DISCUSSION Thomas Scanlon, "A Theory of Freedom of Expression� QUESTIONS FOR DISCUSSION Frederick Schauer, from Free Speech: A Philosophical Enquiry QUESTIONS FOR DISCUSSION Case Study: Pornography Definitional Preliminary Paris Adult Theatre I v. Slaton Catharine MacKinnon, "Pornography, Civil Rights, and 'Speech' American Booksellers Association, Inc. v. Hudnut Ronald Dworkin, "Women and Pornography" Case Study: Hate Speech Collin v. Smith Richard Delgado, "Campus Antiracism Rules: Constitutional Narratives in Collision" Charles Lawrence, "If He Hollers Let Him Go: Regulating Racist Speech on Campus" Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal?" UMW Post, Inc. v. Board of Regents of University of Wisconsin SUGGESTIONS FOR FURTHER READING 4.4 THE RIGHT TO PRIVACY INTRODUCTION READINGS AND CASES Griswold v. Connecticut Privacy as a Constitutional Right David A. J. Richards, "Interpretation and Historiography" Robert Bork, "Neutral Principles and Some First Amendment Problems" QUESTIONS FOR DISCUSSION The Right to an Abortion Roe v. Wade John Noonan, "The Root and Branch of Roe v. Wade" Catharine MacKinnon, "Reflections on Sex Equality Under Law" Planned Parenthood of Southeastern Pennsylvania v. Casey QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 4.5 THE RIGHT TO RELIGIOUS FREEDOM INTRODUCTION READINGS Mario Cuomo, "Religious Belief and Public Morality: A Catholic Governor's Perspective" John Garvey, "The Pope's Submarine" CASES Wallace v. Jaffree Employment Division, Oregon Department of Human Resources v. Smith QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 4.6 THE RIGHT TO PROPERTY INTRODUCTION READINGS Jeremy Waldron, "What is Private Property?" Alan Ryan, "Utility and Property" A. John Simmons, from The Lockean Theory of Rights CASE Penn Central Transportation Co. v. City of New York QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING CHAPTER 5 JUSTICE AND EQUALITY 5.1 WHAT IS JUSTICE? INTRODUCTION READINGS Peter Westen, "The Empty Idea of Equality QUESTIONS FOR DISCUSSION Anthony D'Amato, "Is Equality a Totally Empty Idea?" QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.2 THEORIES OF JUSTICE INTRODUCTION READINGS John Stuart Mill, "On the Connection between Justice and Utility" QUESTIONS FOR DISCUSSION John Rawls, from A Theory of Justice QUESTIONS FOR DISCUSSION Robert Nozick, from Anarchy, State, and Utopia QUESTIONS FOR DISCUSSION Michael Sandel, "Morality and the Liberal Ideal" QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.3 DISCRIMINATION INTRODUCTION READINGS Joseph Tussman and Jacobus tenBroek, "The Equal Protection of the Laws" QUESTIONS FOR DISCUSSION Owen Fiss, "Groups and the Equal Protection Clause" QUESTIONS FOR DISCUSSION CASE Brown v. Board of Education QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.4 PREFERENTIAL TREATMENT INTRODUCTION READINGS Ronald Dworkin, "Why Bakke Has No Case" QUESTIONS FOR DISCUSSION Carl Cohen, "Why Racial Preference is Illegal and Immoral" QUESTIONS FOR DISCUSSION CASES Regents of University of California v. Bakke QUESTIONS FOR DISCUSSION Metro Broadcasting, Inc. v. Federal Communications Commission et al. QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.5 EQUALITY FOR WOMEN INTRODUCTION READINGS Catharine MacKinnon, "Reflections on Sex Equality Under Law" QUESTIONS FOR DISCUSSION Richard Epstein, from Forbidden Grounds: The Case Against Employment Discrimination Laws QUESTIONS FOR DISCUSSION CASES California Federal Savings and Loan v. Guerra QUESTIONS FOR DISCUSSION Meritor Savings Bank v. Vinson QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.6 EQUALITY FOR HOMOSEXUALS INTRODUCTION READINGS Richard Mohr, "Gay Rights" QUESTIONS FOR DISCUSSION Ernest van den Haag, "Sodom and Begorrah" QUESTIONS FOR DISCUSSION CASE Watkins v. United States Army QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 5.7 OTHER KINDS OF DISCRIMINATION INTRODUCTION QUESTIONS FOR DISCUSSION 658 SUGGESTIONS FOR FURTHER READING 658 CHAPTER 6 PUNISHMENT INTRODUCTION 659 6.1 THE NATURE OF PUNISHMENT 661 INTRODUCTION 661 QUESTIONS FOR DISCUSSION 663 SUGGESTIONS FOR FURTHER READING 665 6.2 THEORIES OF PUNISHMENT 666 INTRODUCTION 666 6.3 UTILITARIAN THEORIES OF PUNISHMENT 668 INTRODUCTION 668 READINGS Jeremy Bentham, from An Introduction to the Principles of Morals and Legislation 674 QUESTIONS FOR DISCUSSION 682 John Rawls, "Two Concepts of Rules" 683 QUESTIONS FOR DISCUSSION 689 SUGGESTIONS FOR FURTHER READING 689 6.4 RETRIBUTIVISMS 691 INTRODUCTION 691 READINGS Immanuel Kant, "On the Right to Punish" 701 QUESTIONS FOR DISCUSSION 704 Michael Davis, "Harm and Retribution" 705 QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 6.5 COMBINATIONS AND ALTERNATIVES INTRODUCTION QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 6.6 CAPITAL PUNISHMENT INTRODUCTION READINGS Ernest van den Haag, "The Collapse of the Case Against Capital Punishment" QUESTIONS FOR DISCUSSION Jeffrey Reiman, "Justice, Civilization, and the Death Penalty" QUESTIONS FOR DISCUSSION Stephen Nathanson, "Does it Matter if the Death Penalty is Arbitrarily Administered?" QUESTIONS FOR DISCUSSION CASES Furman v. Georgia Gregg v. Georgia McCleskey v. Kemp Herrera v. Texas QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING CHAPTER 7 RESPONSIBILITY INTRODUCTION 7.1 WHAT IS RESPONSIBILITY? INTRODUCTION 7.2 LEGAL CAUSATION INTRODUCTION READING H. L. A. Hart and Tony Honor�from Causation in the Law QUESTIONS FOR DISCUSSION CASE Palsgraf v. Long Island Railroad 805 QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 7.3 RESPONSIBILITY FOR OMISSIONS INTRODUCTION READINGS Richard Epstein, "A Theory of Strict Liability" QUESTIONS FOR DISCUSSION Ernest Weinrib, "The Case for a Duty to Rescue" QUESTIONS FOR DISCUSSION CASE Farwell v. Keaton QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING TA MENS REA AND STRICT LIABILITY INTRODUCTION READING Richard A. Wasserstrom, "Strict Liability in the Criminal Law" QUESTIONS FOR DISCUSSION CASE Tison v. Arizona QUESTIONS FOR DISCUSSION Case Study: Liability for Rape Glanville Williams, Lords' Decision on the Law of Rape QUESTIONS FOR DISCUSSION Susan Estrich, from Real Rape QUESTIONS FOR DISCUSSION Commonwealth v. Sherry QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 7.5 THE INSANITY DEFENSE INTRODUCTION READINGS Norval Morris, from Madness and the Criminal Law QUESTIONS FOR DISCUSSION Richard Bonnie, "The Moral Basis of the Insanity Defense� QUESTIONS FOR DISCUSSION CASE Selection from the transcript of John Hinckley's trial QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING CHAPTER 8 LEGAL PROCEDURE AND EVIDENCE INTRODUCTION 8.1 THE BURDEN OF PROOF INTRODUCTION READINGS John Kaplan, "Decision Theory and the Factfinding Process� Frederick Schauer and Richard Zeckhauser, "On the Degree of Confidence for Adverse Decisions" CASE In re Winship QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 8.2 PROBABILITY AND THE LAW OF EVIDENCE INTRODUCTION READINGS Michael J. Saks and Robert F. Kidd, "Human Information Processing and Adjudication: Trial By Heuristics" Judith Jarvis Thomson, "Liability and Individualized Evidence" CASES Smith v. Rapid Transit, Inc. People v. Collins QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING 8.3 CRIMINAL PROCEDURE AND THE EXCLUSIONARY RULE INTRODUCTION READINGS Malcolm Wilkey, "The Exclusionary Rule: Costs and Viable Alternatives" Stephen H. Sachs, "The Exclusionary Rule: A Prosecutor's Defense" CASE United States v. Leon QUESTIONS FOR DISCUSSION SUGGESTIONS FOR FURTHER READING APPENDIX - The Constitution of the United States of America ISBN 9780155008274