Readings in the Philosophy of Law
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This anthology of classical, contemporary, philosophical and legal essays/cases focuses on legal philosophy as its own subject—rather than being a part of social/political philosophy or applied ethics. The essays within this reader focus on how law is organized and the particular philosophical issues that it raises. The book requires students to think through actual debates–many of them still currently in the courts. Booknews Through philosophical and legal essays and an array of legal cases, this collection of readings for an undergraduate course surveys the main philosophical questions concerning law and provides readers with basic conceptual and theoretical tools for analyzing and debating those basic issues. This revised edition (first was 1984) takes account of recent theoretical developments (such as critical legal studies and feminist legal scholarship) and currently controversial issues (such as hate speech and racial bias in sentencing). No index. Annotation c. Book News, Inc., Portland, OR (booknews.com)
1The adversary system and the practice of law1Lawyers' ethics in an adversary system2An alternative to the adversary system10Building power and breaking images : critical legal theory and the practice of law12The lost lawyer172The rule of law24Magnitude and importance of legal science24Eight ways to fail to make law27Grudge informers and the rule of law32The problem of the grudge informer33The rule of law and its virtues383The moral force of law45Crito45The justification of civil disobedience50On not prosecuting civil disobedience574Statutes65On interpretation : the adultery clause of the Ten Commandments65Interpreting the Small Bird Act68Regina v. OjibwayA case study in interpretation : the Mann Act69Cases interpreting the Mann Act74Caminetti v. United States; Mortensen v. United States; and Cleveland v. United StatesInterpretation80Who is a drunk driver?84Kentucky v. WhittWhat is a vegetable?85Nix v. HeddenCan a murderer inherit?86Riggs v. Palmer5Precedents91Reasoning by analogy91Stare decisis : the uses of precedent93Rape, consent, and "mens rea"102Regina v. MorganPrecedent and legitimacy105Planned Parenthood v. Casey6Classical perspectives111Traditional natural law theory112Summa theologica116Blackstone's commentaries121The province of jurisprudence determined1267Formalism and legal realism132The system of law132The path of the law135Realism and the law1398Morality and the law147Positivism and the separation of law and morals147Law as the union of primary and secondary rules155The model of rules161Natural law revisited170The dependence of morality on law1769International law182International law182The African slave trade187United States v. La Jeune Eugenie; The antelope; and The AmistadInternational law and individual responsibility192The International Military Tribunal at Nuremberg10Theories about law198The economic approach to law198Law and economics : an analysis and critique209Critical legal studies213Jurisprudence and gender220Critical legal studies and Dworkin231Skepticism, objectivity, and democracy23811The justification of punishment245Who should be punished?245The case of the dog ProvetieThe utilitarian theory of criminal punishment246Persons and punishment252The moral education theory of punishment259Restitution : a new paradigm of criminal justice26312The rights of defendants269Criminal justice and the negotiated plea269Convicting the innocent276The Dirty Harry problem284A debate on the exclusionary rule292Interrogation and the right to counsel302Miranda v. Arizona; Brewer v. Williams; and Rhode Island v. InnisEntrapment317United States v. Tobias13Sentencing324Capital punishment324Gregg v. GeorgiaElectric shock : the fairest punishment of all331"Three strikes"335Rummel v. EstelleRacial bias in sentencing339McClesky v. Kemp14Criminal responsibility342Survival on a lifeboat342The Queen v. Dudley and StephensThe principles of criminal law347Intention352Attempting the impossible : the crime that never was358The battered woman syndrome365State v. LeidholmRape, force, and consent368Is the insanity test insane?375What is so special about mental illness?383The "rotten social background" excuse390United States v. Alexander and MurdockExecuting mentally retarded murderers395Atkins v. Virginia15Compensating for private harms : the law of torts403The efficiency of the common law404Negligence408Economic efficiency and the "hand formula"414United States v. Carroll Towing CompanyForeseeable risk415Stone v. BoltonTort liability and corrective justice418Negligence and due care425Palsgraf v. Long Island Railroad CoLoss, agency, and responsibility for outcomes432Liability without causation?436Summers v. TiceLegal causation and the desert traveler439A duty to rescue?450Yania v. Bigan; Farwell v. Keaton; and McFall v. ShimpWrongful life and wrongful birth454Berman v. Allan16Private ownership : the law of property461Property461Property and sovereignty466Intellectual property472Property acquisition478Haslem v. LockwoodRegulation of private property482Pennsylvania Coal Co. v. MahonTaking without compensation485Penn Central Transportation Co. v. New York City17Private agreements : the law of contract490The basis of contract490Contract as promise497Unconscionable contracts505Williams v. Walker-Thomas Furniture CoSurrogate mother contracts507In the matter of Baby MEmployment contracts515Lochner v. New York; Muller v. Oregon; Coppage v. Kansas; and West Coast Hotel Co. v. Parrish18Constitutionalism and democracy523The Federalist Papers524The political meaning of constitutionalism : British, French, and American perspectives530The notion of a living constitution545Constitutional cases546Democracy, judicial review, and the special competency of judges55519Freedom of religion, privacy, and speech565A letter concerning toleration565School prayer569Religious freedom and public education573Wisconsin v. YoderSecular humanism and religious establishment576Smith v. Board of Education of MobileOn liberty579The right to privacy585Griswold v. ConnecticutHomosexuality and the right to privacy589Lawrence v. TexasGay marriage596Goodridge v. Massachusetts Department of Public HealthJudicial activism and gay marriage : a debate605Of the liberty of thought and discussion608Flag burning612Texas v. JohnsonNazi marches615Village of Skokie v. National Socialist PartyObscenity619Paris Adult Theatre v. SlatonPornography and women621American Booksellers v. HudnutCampus speech codes624Doe v. University of Michigan20Equality629Wartime internment of Japanese Americans629Korematsu v. United StatesRacial equality and affirmative action634Affirmative action in universities641Grutter v. BollingerGender discrimination646Michael M. v. Sonoma County Superior CourtSpeech creating a "hostile environment"648Harris v. Forklift SystemsAppThe Bill of Rights and the Fourteenth Amendment651
