SYLLABUS FOR PHILOSOPHY OF LAW-SPRING 2013
PHILOSOPHY OF LAW
SPRING, 2013
The goal of this course is to introduce students to philosophical issues raised by the criminal law. .The course has four major sections. The first considers the question of what sort of behavior should be criminalized. The second considers justifications and excuses as defenses which might be offered by violators of the criminal law. The third looks at several controversial cases of criminal liability. The final section considers justifications for punishment and a consideration of alternatives to it. The objective of each section is to promote critical reflection on the issues raised by that section.
The syllabus below contains links to all of the readings. My plan is to use material in the public domain, obtainable through the web, so as to avoid the cost of textbooks and so as to maximize my flexibility in choosing the best material that I can find for use in this course. Many of the sessions contain a court case as well as a reading. For those sessions, we will evaluate the court opinion in light of the ideas expressed by the authors of the reading.
AS THIS IS A SEMINAR, IT IS EXPECTED THAT STUDENTS WILL HAVE THE READING(S) DONE BEFORE CLASS AND WILL COME PREPARED TO DISCUSS
THEM—ALTHOUGH THERE WILL BE NO FORMAL GRADING OF CLASSROOM PARTICIPATION, STUDENTS WHO ARE REGULARLY UNPREPARED CAN EXPECT A MODEST REDUCTION IN THEIR GRADE
At the end of the first three sections, there will be a short exam on that section. Each of these short exams will count for 20% of your grade. At the end of the course, there will be a final exam covering the entire course. It will count for 40% of your grade. In preparing for the exams, you may review the material with your fellow students and consult the readings and your notes. You can do none of that once you open the exam. These exams follow the rules associated with closed book exams.
I will usually be in my office all day on Wednesdays. You can always reach me by email at [email protected] , I will meet individually with students who do poorly on the first short assignment to identify problems and solutions. I will meet with all of you after the third assignment is handed back to review your progress in the course and to discuss what you need to do to improve your work in the final exam.
TOPICS AND READINGS
January 8 Opening Session- Introduction
Unit I- Criminilization
January 10 What is Criminilization?
Paul H. Robinson* The criminal-civil distinction and the utility of desert
https://www.law.upenn.edu/fac/phrobins/CRIMTOR6.pdf
On Moral Justifications for the Tort/Crime Distinction : Robert W. Drane and David J. Neal California Law Review, Vol. 68, No. 2,
http://www.jstor.org/stable/10.2307/3479992
January 15 Mill’s Harm Principle
J.S. Mill, On Liberty (chapter 4)
http://www.bartleby.com/130/4.html
Lawrence v Texas 539 U.S. 558 (2003)- the sodomy case
http://scholar.google.com/scholar_case?case=15714610278411834284&hl=en&as_sdt=2,44&scfhb=1
January 17 Limits on Criminilazation- Victimless Crimes
Victimless Crimes Alan Wertheimer : Ethics, Vol. 87, No. 4 (Jul., 1977), pp. 302-318
www.jstor.org/stable/2379900
January 22Limits on Criminilazation- Offensive Behavior and Speech
TEXAS v. JOHNSON, 491 U.S. 397 (1989) – the flag burning case
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=397
Harlon Dalton Disgust and Punishment Yale Law Journal (1987)
http://www.jstor.org/stable/pdfplus/796366.pdf (this is a review of a book by Joel Feinberg, but the article stands on its own)
January 24 Limits on Criminilazation- Enforcing Morality
343 U.S. 495 (1952)JOSEPH BURSTYN, INC.v. WILSON, COMMISSIONER OF EDUCATION OF NEW YORK, ET AL.
http://scholar.google.com/scholar_case?case=5628256980652867975&q=joseph+burstyn+inc.+v.+wilson&hl=en&as_sdt=2,44&as_vis=1
Otto Preminger Institut v. Austria (European Court of Human Rights case on blasphemous movie)
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/1703f1d98ca04f72c1256640004c2940?OpenDocument
Liberalism, Freedom, and Community Richard J. Arneson Ethics, Vol. 100, No. 2 (Jan., 1990), pp. 368-385
http://www.jstor.org/stable/10.2307/2381003 (this is a review of another book by Joel Feinberg, but the article also stands on its own)
January 29 Limits on Criminilization- Paternalism
Everhardt v. City of New Orleans, 217 So. 2d 400 – the motorcycle helmet case
http://scholar.google.com/scholar_case?case=1467292048007218413&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Recreational Drugs and Paternalism DouglasHusak Law and Philosophy vol 8 (1989) pp, 353-381
http://www.jstor.org/stable/pdfplus/3504593.pdf?acceptTC=true
January 31 Limits on Criminilization- International Criminal Law
Part 2 of the Rome Statute of the International Criminal Court
http://untreaty.un.org/cod/icc/statute/romefra.htm
A Defense of International Criminal Law
Altman and Wellman Ethics vol 115 (2004) pp. 35-67
http://www.jstor.org/stable/10.1086/422895
Unit II- Defenses: Justifications and Excuses
February 5The Distinction and its Significance
Paul H Robinson Criminal Law Defenses: A Systematic Analysis Columbia Law Review vol 82 (1982) pp. 199-291
http://www.jstor.org/stable/pdfplus/1122275.pdf
February 7 Self-Defense
People v Goetz (1998)
http://scholar.google.com/scholar_case?case=3137329236174772688&q=people+v.+goetz&hl=en&as_sdt=2002
David Wasserman Justifying Self Defense Philosophy and Public Affairs vol 16 (1987) pp. 356-78
http://www.jstor.org/stable/pdfplus/2265279.pdf
February 12 Necessity
Commonwealth v. Hutchins, 575 NE 2d 741 - Mass: Supreme Judicial Court 1991-the medical use of marijuana case
http://scholar.google.com/scholar_case?case=7113296666414167812&q=Commonwealth+v+Hutchins&hl=en&as_sdt=2,44
Alan Brudner A Theory of Necessity Oxford Journal of Legal Studies, Vol. 7, No. 3 (Winter, 1987), pp. 339-368
http://www.jstor.org/stable/pdfplus/764387.pdf?acceptTC=true
February 14 Duress
Threatened women and duress as a justification or an excuse which mitigates punishment- United States v a number of women: United States Court of Appeals, Ninth Circuit. - 956 F.2d 894 (1992)
http://law.justia.com/cases/federal/appellate-courts/F2/956/894/325975/
Craig Carr, Duress and Criminal Responsibility Law and Philosophy Vol 10, No 2 (1991) pp. 161-88
http://www.jstor.org/stable/3504910
February 19 Provocation
State of Hawai v Dumlao 715 P.2d 822 (1986)- older and newer accounts of provocation
http://scholar.google.com/scholar_case?case=558211399827039287&q=State+v+Dumlao&hl=en&as_sdt=2,44
Joshua Dressler, Provocation: Partial Justification or Partial Excuse The Modern Law Review, Vol 51 No 4 (1988) pp. 467-480
http://www.jstor.org/stable/10.2307/1096228
February 21 Diminished Mental Capacity.
Atkins v Virginia 536 U.S. 304 (2002)- supreme court on death penalty for retarded person
http://scholar.google.com/scholar_case?case=2043469055777796288&q=diminished+capacity&hl=en&as_sdt=2,44
.
Joshua Dressler, Reaffirming the Moral Legitimacy of the Doctrine of Diminished Capacity The Journal of Criminal Law and Criminology (1973-), Vol. 75, No. 3 (Autumn, 1984),pp. 953-62
http://www.jstor.org/stable/1143651
.
LAST WEEK OF FEBRUARY—SPRING BREAK
March 5- Culture as a Defense?
Doriane Coleman Individualizing Justice Through Multiculturalism Columbia Law Review vol 96 #5 (1996) pp. 1093-1167
http://www.jstor.org/stable/10.2307/1123402
March 7- Do False Beliefs have to be Reasonable to be Used as a Defense?
Douglas Husak and George Thomas, Date Rape Social Convention and Reasonable Mistakes Law and Philosophy vol 11 (1992) pp. 95-126
http://www.jstor.org/stable/pdfplus/3504905.pdf?acceptTC=true
Unit III- Special Cases of Criminal Liability
March 12- Liability for Omissions
STATE v. WILLIQUETTE 385 N.W.2d 145- child abuse by not intervening
http://www.leagle.com/xmlResult.aspx?xmldoc=1986368129Wis2d239_1352.xml&docbase=CSLWAR2-1986-2006
Alison McIntyre Guilty Bystanders Philosophy and Public Affairs
Vol. 23, No. 2 (Spring, 1994), pp. 157-191
http://www.jstor.org/stable/2265484.
March 14-Liability for Failed Attempts
People v. Dillon, 668 P. 2d 697 - Cal: Supreme Court 1983 – definition of attempts when relevant to felony murder cases http://scholar.google.com/scholar_case?case=16336126005486548570&q=punishment Sanford H. Kadish The Criminal Law and the Luck of the Draw Journal of Criminal Law and Criminology (1994) http://www.jstor.org/stable/1143915 March 19- Corporate Criminal Liability
State of Louisiana v. Chapman Dodge Center. and John Swindle- when has a corporation rather than individuals acted?
http://scholar.google.com/scholar_case?case=6994456648459237919&hl=en&as_sdt=2&as_vis=1&oi=scholarr
V,S, Khanna Corporate Criminal Liability: What Purpose Does it Serve? Harvard Law Review vol 109 (1996) pp 1477-1534
http://www.masonlec.org/wp-content/uploads/2012/04/Khanna_Corp-Crim-Liability.pdf
March 21- Liability for Blackmail
George Fletcher Blackmail: The Paradigmatic Crime University of Pennsylvania Law Review, Vol. 141, No. 5 (May, 1993), pp. 1617-1638
http://www.jstor.org/stable/3312569
.
.MARCH 26-APRIL 2: No Classes
Unit IV- Punishment and its Alternatives
APRIL 4- Punishment as Deterrence or as Retribution
Edward Strong, Justification of Juridical Punishment Ethics, Vol. 79, No. 3 (Apr., 1969), pp. 187-198
http://www.jstor.org/stable/2379842
APRIL 9- Mixed Theories of Punishment
John Rawls, Two Concepts of Rules The Philosophical Review vol 64 (1955) pp. 3-32
http://www.dif.unige.it/dot/filosofiaXXI/rawls.pdf
April 11- The Expressive Dimension of Punishment
Dan M.Kahan What Do Alternative Sanctions Mean? The University of Chicago Law Review, Vol. 63, No. 2 (Spring, 1996), pp. 591-653
http://www.jstor.org/stable/1600237
APRIL 16- Mercy
California v Brown 479 U.S. 538 (1987)- supreme court on mercy in sentencing
http://scholar.google.com/scholar_case?case=13253217159115774777&q=mercy+in+sentencing&hl=en&as_sdt=2,44
John Tasioulas Mercy PAS vol 103 (2003) pp. 101-32
http://www.jstor.org/stable/4545388
.
APRIL 18- Forgiveness
Lucy Alais, Wiping the Slate Clean Philosophy and Public Affairs vol 36 (2008) pp 33-68
http://onlinelibrary.wiley.com/doi/10.1111/j.1088-4963.2008.00123.x/pdf
SPRING, 2013
The goal of this course is to introduce students to philosophical issues raised by the criminal law. .The course has four major sections. The first considers the question of what sort of behavior should be criminalized. The second considers justifications and excuses as defenses which might be offered by violators of the criminal law. The third looks at several controversial cases of criminal liability. The final section considers justifications for punishment and a consideration of alternatives to it. The objective of each section is to promote critical reflection on the issues raised by that section.
The syllabus below contains links to all of the readings. My plan is to use material in the public domain, obtainable through the web, so as to avoid the cost of textbooks and so as to maximize my flexibility in choosing the best material that I can find for use in this course. Many of the sessions contain a court case as well as a reading. For those sessions, we will evaluate the court opinion in light of the ideas expressed by the authors of the reading.
AS THIS IS A SEMINAR, IT IS EXPECTED THAT STUDENTS WILL HAVE THE READING(S) DONE BEFORE CLASS AND WILL COME PREPARED TO DISCUSS
THEM—ALTHOUGH THERE WILL BE NO FORMAL GRADING OF CLASSROOM PARTICIPATION, STUDENTS WHO ARE REGULARLY UNPREPARED CAN EXPECT A MODEST REDUCTION IN THEIR GRADE
At the end of the first three sections, there will be a short exam on that section. Each of these short exams will count for 20% of your grade. At the end of the course, there will be a final exam covering the entire course. It will count for 40% of your grade. In preparing for the exams, you may review the material with your fellow students and consult the readings and your notes. You can do none of that once you open the exam. These exams follow the rules associated with closed book exams.
I will usually be in my office all day on Wednesdays. You can always reach me by email at [email protected] , I will meet individually with students who do poorly on the first short assignment to identify problems and solutions. I will meet with all of you after the third assignment is handed back to review your progress in the course and to discuss what you need to do to improve your work in the final exam.
TOPICS AND READINGS
January 8 Opening Session- Introduction
Unit I- Criminilization
January 10 What is Criminilization?
Paul H. Robinson* The criminal-civil distinction and the utility of desert
https://www.law.upenn.edu/fac/phrobins/CRIMTOR6.pdf
On Moral Justifications for the Tort/Crime Distinction : Robert W. Drane and David J. Neal California Law Review, Vol. 68, No. 2,
http://www.jstor.org/stable/10.2307/3479992
January 15 Mill’s Harm Principle
J.S. Mill, On Liberty (chapter 4)
http://www.bartleby.com/130/4.html
Lawrence v Texas 539 U.S. 558 (2003)- the sodomy case
http://scholar.google.com/scholar_case?case=15714610278411834284&hl=en&as_sdt=2,44&scfhb=1
January 17 Limits on Criminilazation- Victimless Crimes
Victimless Crimes Alan Wertheimer : Ethics, Vol. 87, No. 4 (Jul., 1977), pp. 302-318
www.jstor.org/stable/2379900
January 22Limits on Criminilazation- Offensive Behavior and Speech
TEXAS v. JOHNSON, 491 U.S. 397 (1989) – the flag burning case
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=397
Harlon Dalton Disgust and Punishment Yale Law Journal (1987)
http://www.jstor.org/stable/pdfplus/796366.pdf (this is a review of a book by Joel Feinberg, but the article stands on its own)
January 24 Limits on Criminilazation- Enforcing Morality
343 U.S. 495 (1952)JOSEPH BURSTYN, INC.v. WILSON, COMMISSIONER OF EDUCATION OF NEW YORK, ET AL.
http://scholar.google.com/scholar_case?case=5628256980652867975&q=joseph+burstyn+inc.+v.+wilson&hl=en&as_sdt=2,44&as_vis=1
Otto Preminger Institut v. Austria (European Court of Human Rights case on blasphemous movie)
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/1703f1d98ca04f72c1256640004c2940?OpenDocument
Liberalism, Freedom, and Community Richard J. Arneson Ethics, Vol. 100, No. 2 (Jan., 1990), pp. 368-385
http://www.jstor.org/stable/10.2307/2381003 (this is a review of another book by Joel Feinberg, but the article also stands on its own)
January 29 Limits on Criminilization- Paternalism
Everhardt v. City of New Orleans, 217 So. 2d 400 – the motorcycle helmet case
http://scholar.google.com/scholar_case?case=1467292048007218413&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Recreational Drugs and Paternalism DouglasHusak Law and Philosophy vol 8 (1989) pp, 353-381
http://www.jstor.org/stable/pdfplus/3504593.pdf?acceptTC=true
January 31 Limits on Criminilization- International Criminal Law
Part 2 of the Rome Statute of the International Criminal Court
http://untreaty.un.org/cod/icc/statute/romefra.htm
A Defense of International Criminal Law
Altman and Wellman Ethics vol 115 (2004) pp. 35-67
http://www.jstor.org/stable/10.1086/422895
Unit II- Defenses: Justifications and Excuses
February 5The Distinction and its Significance
Paul H Robinson Criminal Law Defenses: A Systematic Analysis Columbia Law Review vol 82 (1982) pp. 199-291
http://www.jstor.org/stable/pdfplus/1122275.pdf
February 7 Self-Defense
People v Goetz (1998)
http://scholar.google.com/scholar_case?case=3137329236174772688&q=people+v.+goetz&hl=en&as_sdt=2002
David Wasserman Justifying Self Defense Philosophy and Public Affairs vol 16 (1987) pp. 356-78
http://www.jstor.org/stable/pdfplus/2265279.pdf
February 12 Necessity
Commonwealth v. Hutchins, 575 NE 2d 741 - Mass: Supreme Judicial Court 1991-the medical use of marijuana case
http://scholar.google.com/scholar_case?case=7113296666414167812&q=Commonwealth+v+Hutchins&hl=en&as_sdt=2,44
Alan Brudner A Theory of Necessity Oxford Journal of Legal Studies, Vol. 7, No. 3 (Winter, 1987), pp. 339-368
http://www.jstor.org/stable/pdfplus/764387.pdf?acceptTC=true
February 14 Duress
Threatened women and duress as a justification or an excuse which mitigates punishment- United States v a number of women: United States Court of Appeals, Ninth Circuit. - 956 F.2d 894 (1992)
http://law.justia.com/cases/federal/appellate-courts/F2/956/894/325975/
Craig Carr, Duress and Criminal Responsibility Law and Philosophy Vol 10, No 2 (1991) pp. 161-88
http://www.jstor.org/stable/3504910
February 19 Provocation
State of Hawai v Dumlao 715 P.2d 822 (1986)- older and newer accounts of provocation
http://scholar.google.com/scholar_case?case=558211399827039287&q=State+v+Dumlao&hl=en&as_sdt=2,44
Joshua Dressler, Provocation: Partial Justification or Partial Excuse The Modern Law Review, Vol 51 No 4 (1988) pp. 467-480
http://www.jstor.org/stable/10.2307/1096228
February 21 Diminished Mental Capacity.
Atkins v Virginia 536 U.S. 304 (2002)- supreme court on death penalty for retarded person
http://scholar.google.com/scholar_case?case=2043469055777796288&q=diminished+capacity&hl=en&as_sdt=2,44
.
Joshua Dressler, Reaffirming the Moral Legitimacy of the Doctrine of Diminished Capacity The Journal of Criminal Law and Criminology (1973-), Vol. 75, No. 3 (Autumn, 1984),pp. 953-62
http://www.jstor.org/stable/1143651
.
LAST WEEK OF FEBRUARY—SPRING BREAK
March 5- Culture as a Defense?
Doriane Coleman Individualizing Justice Through Multiculturalism Columbia Law Review vol 96 #5 (1996) pp. 1093-1167
http://www.jstor.org/stable/10.2307/1123402
March 7- Do False Beliefs have to be Reasonable to be Used as a Defense?
Douglas Husak and George Thomas, Date Rape Social Convention and Reasonable Mistakes Law and Philosophy vol 11 (1992) pp. 95-126
http://www.jstor.org/stable/pdfplus/3504905.pdf?acceptTC=true
Unit III- Special Cases of Criminal Liability
March 12- Liability for Omissions
STATE v. WILLIQUETTE 385 N.W.2d 145- child abuse by not intervening
http://www.leagle.com/xmlResult.aspx?xmldoc=1986368129Wis2d239_1352.xml&docbase=CSLWAR2-1986-2006
Alison McIntyre Guilty Bystanders Philosophy and Public Affairs
Vol. 23, No. 2 (Spring, 1994), pp. 157-191
http://www.jstor.org/stable/2265484.
March 14-Liability for Failed Attempts
People v. Dillon, 668 P. 2d 697 - Cal: Supreme Court 1983 – definition of attempts when relevant to felony murder cases http://scholar.google.com/scholar_case?case=16336126005486548570&q=punishment Sanford H. Kadish The Criminal Law and the Luck of the Draw Journal of Criminal Law and Criminology (1994) http://www.jstor.org/stable/1143915 March 19- Corporate Criminal Liability
State of Louisiana v. Chapman Dodge Center. and John Swindle- when has a corporation rather than individuals acted?
http://scholar.google.com/scholar_case?case=6994456648459237919&hl=en&as_sdt=2&as_vis=1&oi=scholarr
V,S, Khanna Corporate Criminal Liability: What Purpose Does it Serve? Harvard Law Review vol 109 (1996) pp 1477-1534
http://www.masonlec.org/wp-content/uploads/2012/04/Khanna_Corp-Crim-Liability.pdf
March 21- Liability for Blackmail
George Fletcher Blackmail: The Paradigmatic Crime University of Pennsylvania Law Review, Vol. 141, No. 5 (May, 1993), pp. 1617-1638
http://www.jstor.org/stable/3312569
.
.MARCH 26-APRIL 2: No Classes
Unit IV- Punishment and its Alternatives
APRIL 4- Punishment as Deterrence or as Retribution
Edward Strong, Justification of Juridical Punishment Ethics, Vol. 79, No. 3 (Apr., 1969), pp. 187-198
http://www.jstor.org/stable/2379842
APRIL 9- Mixed Theories of Punishment
John Rawls, Two Concepts of Rules The Philosophical Review vol 64 (1955) pp. 3-32
http://www.dif.unige.it/dot/filosofiaXXI/rawls.pdf
April 11- The Expressive Dimension of Punishment
Dan M.Kahan What Do Alternative Sanctions Mean? The University of Chicago Law Review, Vol. 63, No. 2 (Spring, 1996), pp. 591-653
http://www.jstor.org/stable/1600237
APRIL 16- Mercy
California v Brown 479 U.S. 538 (1987)- supreme court on mercy in sentencing
http://scholar.google.com/scholar_case?case=13253217159115774777&q=mercy+in+sentencing&hl=en&as_sdt=2,44
John Tasioulas Mercy PAS vol 103 (2003) pp. 101-32
http://www.jstor.org/stable/4545388
.
APRIL 18- Forgiveness
Lucy Alais, Wiping the Slate Clean Philosophy and Public Affairs vol 36 (2008) pp 33-68
http://onlinelibrary.wiley.com/doi/10.1111/j.1088-4963.2008.00123.x/pdf