Philosophy 4600



Philosophy 224W. H. WilcoxPhilosophy of LawOffice: Main 115 (696-6024)Fall 2014Office Hours:Tuesday 11:15-12:15;Thursday 8:30-9:30; & by appointment.Course Description:This course will survey several central topics in the philosophy of law including ones that are extremely abstract and some that are quite concrete. We begin by looking at attempts to explain the general nature of law and end with questions about contract law. Along the way, we’ll look at recent controversies about the U.S. government’s responses to terrorism in part to see whether views about the nature, purposes, and value of law can help in resolving them. A significant portion of the course will be spent examining tort and criminal law. Both provide a legal response to harmful conduct, but their responses and purposes seem to differ. It seems that the criminal law is focused on those who cause harm seeking punishment of wrongdoers, while tort law seems to focus on the parties wrongly harmed seeking a way to repair the harm. Our readings will raise questions about these very simple descriptions of the purposes of these two areas of law. A traditional feature of Anglo-American law is that while it has created general legal duties not to harm others (some harms being addressed by criminal law, some by tort law, and some by both), it has not created general legal duties to come to the aid of others even if their lives are endangered and they can be easily rescued. (A few states have fairly recently departed from this tradition.) One section of the course will ask whether or not there should be a legal duty to come to the assistance of others, at least when it can easily and safely be done, and if so whether a failure to do so would be better addressed by criminal or tort law.Readings:Most readings will be from the required textbook, Feinberg & Coleman, Philosophy of Law, 8th ed., but some will be available on the web, most of those from Macalester’s electronic journals. Requirements and Grading:Reading Reactions (10%):There are twenty-four days during the semester for which new readings are assigned. For at least fifteen of these days, articulate and develop one question that you think would be a good one to raise about some aspect of the reading. Reactions should be about a page and should be completed by the beginning of class. A hard copy could be brought to class, but it would be better to send me a copy electronically as an email attachment. These will be assessed as being satisfactory or unsatisfactory and will constitute 10% of your final grade. For full credit you must complete fifteen of the assignments satisfactorily. Late reactions will not be accepted.Short Papers (45%):There will be three short (4-6) page papers. The first two are tentatively due at the beginning of class on October 2 and November 6. The last short paper is due at 3:30 p.m. on December 13, the time at which the final exam is scheduled. Each will constitute 15% of your final grade. The first two short papers may be rewritten and resubmitted up until one week after they are returned in an attempt to improve the grade. The revision can improve the grade on the paper no more than one full letter grade (e.g. from B- to A-). The Final Short Paper must be on a topic from Sections VIII-X of the syllabus.. The short papers will be penalized one grade (e.g. from A to A-) for each day late.3.Longer Paper (45%):A 10-15 page paper to be written in two drafts. The first draft will be due on November 20 and will be returned with comments but no grade. The second draft will be due on December 9. Your grade will depend both on the final version’s quality and on the quality of its responses to comments. Late papers will be penalized one grade (e.g. from A to A-) for every two days they are late on either the first or final draft.Note: To receive credit for the course all four papers must be completed.Class participation will be considered and can either raise or lower the final grade by one grade (e.g. from B+ to A-). At a minimum, you are expected to attend class regularly.Academic Integrity: I follow the College’s policies on academic integrity.Summary of Paper Due Dates:October 2—First Short PaperNovember 6—Second Short PaperNovember 20—First Draft of Longer PaperDecember 9—Final Draft of Longer PaperDecember 13—Third Short PaperTentative Schedule of Topics and ReadingsUnless otherwise noted, all readings are from the Feinberg & Coleman volume and should be completed before the first day on which they will be discussed.I. IntroductionSept. 2II. The Nature of Law: The Traditions of Natural Law Theory and Legal PositivismAquinas, 8-13 Sept. 4Austin, 55-68 Sept. 9III. The Nature of Law: More Recent Natural Law Theory and Legal PositivismHart, 68-84 Sept. 11Ronald M. Dworkin, “The Model of Rules,” The University of Chicago Law Review, Vol. 35, No. 1 (Autumn, 1967), pp. 14-46. , 134-150 Sept. 16Coleman, 84-100 Sept. 18Lon L. Fuller, “Reason and Fiat in Case Law,” Harvard Law Review, Vol. 59, No. 3. (Feb., 1946), pp. 376-395. : Murphy, 17-36 Sept. 23IV. The Nature of Law: American Legal RealismHolmes, 120-126Only roughly the first half of this classic essay is reprinted in Feinberg & Coleman. If you would like to read the entire essay see:O. W. Holmes, “The Path of the Law,” Harvard Law Review, Vol. 10, No. 8. (Mar. 25, 1897), pp. 457-478. , 117-119 Sept. 25Lon L. Fuller, “American Legal Realism,” University of Pennsylvania Law Review and American Law Register, Vol. 82, No. 5. (Mar., 1934), pp. 429-462. [Read 429-438] Sept. 30 How Should We Want Judges to Decide Cases? October 2—FIRST SHORT PAPER DUEFuller, 37-54 Oct. 2VI. Terrorism and TortureSmith, 456-471 Oct. 7Yoo and Delahunty, 471-479Hamden v. Rumsfeld, 479-496 Oct. 9Dershowitz, 497-508Oct. 14Waldron, 509-529 Only a small portion of this essay is reprinted in Feinberg & Coleman. If you would like to read the entire essay see: Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, Vol. 105, No. 6 (October 2005), pp. 1681-1750. . 16VII. Responsibility and Tort LawPalsgraf v. The Long Island Railroad Co., 767-774Summers v. Tice, 774-777Sindell v. Abbott Laboratories, 778-794 Oct. 21Honoré, 574-589Gardner, 685-706 Oct. 28Perry, 706-721Coleman & Ripstein, 722-744 Oct. 30Shiffrin, 745-767 See also Shiffrin’s “Harm and Its Moral Significance,” Legal Theory (September 2012), pp. 1-42. Macalester doesn’t have access to Legal Theory, but the paper can be downloaded from Shiffrin’s website at UCLA’s Law School. Nov. 4VIII. Responsibility and Criminal LawNovember 13—SECOND SHORT PAPER DUEFeinberg, 624-29 Nov. 6Morris, 641-655Murphy, 655-664 Nov. 11Kadish & Schulhofer, 590-595Lewis, 595-603 Nov.13Gardner, 604-615People v. Young, 615-618 Nov. 18November 20-- FIRST DRAFT OF LONG PAPER DUERandy E. Barnett, “Restitution: A New Paradigm of Criminal Justice,” Ethics, Vol. 87, No. 4. (Jul., 1977), pp. 279-301. Nov 20 IX. Duty to RescueWe’ll read some of the following:Ernest J. Weinrib, “The Case for a Duty to Rescue,” The Yale Law Journal, Vol. 90, No. 2 (Dec., 1980), pp. 247-293. Waldron’s contribution to “Symposium:?On The Road: Good Samaritans and Compelling Duties,” Santa Clara Law Review, Vol. 40 (fall 2000). essays in “The Moral and Legal Limits of Samaritan Duties,” Law and Philosophy, Vol. 19, No. 6 (Nov., 2000). &pi=68 Nov. 25 & Dec. 2X. ContractFried, 829-850Shiffren, 873-892 Dec. 4XI. Conclusion Dec. 9December —FINAL DRAFT OF LONG PAPER DUEDecember 13, 3:30 p.m.—THIRD SHORT PAPER DUE ................
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