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Using the rule of law as its main theme, this text shows how abstract questions and concepts of legal philosophy are connected to concrete legal, political, and social issues. The text addresses several modern controversies and challenges students to consider both sides of an argument, using sound, reasoned thinking.
Introduction. 1. The Rule of Law. The Impeachment of a President. Arbitrary Government and the Rule of Law. Corruption. Vengeance. Liberty and Prosperity. Hobbes and Austin: The Sovereign as Above the Law. The Crooked Timber of Humanity. Substantive v. Legal Justice. The Independent Counsel Controversy. Political Trials. The Impeachment Trial. 2. Law and Morality. Judgment at Nuremberg. Natural Law Theory: Overview. Traditional Natural Law Theory: Background. Aquinas's Theory of Law. Assessing Aquinas. Fuller and Fidelity to Law. Dworkin's Interpretive Theory. Legal Positivism: Overview. Austin's Theory of Law. Hart: Law as Primary and Secondary Rules. Summary: Natural Law and Positivism. 3. The Constitution. Popular Government and the Rule of Law. The "Troublesome" Provisions. The Supreme Court and Judicial Review. Judicial Review and the Rule of Law. Judicial Review and Democracy. Constitutional Interpretation: Implicit Rights? Framer's Intent. Original Understanding. Dworkin and the Constitution. Criticisms of Dworkin. High Crimes and Misdemeanors. Summary. 4. Private Law: Torts, Contracts, and Property. The Functions of Private Law. The Traditional Public-Private Distinction. Criticisms of the Public-Private Distinction. The Traditional Contract-Tort Distinction. Criticisms of the Contract-Tort Distinction. Defenses of the Contract-Tort Distinction. Assessing Traditionalism. Subjective and Objective Approaches in Tort Law. The Duty to Aid. Summary. 5. Criminal Law. Torts and Crimes. A Utilitarian Approach. A Retributivist Approach. The Therapeutic Model. Amount of Punishment. Mens Rea v. Strict Liability. The Limits of Criminal Law: The Public-Private Distinction. Summary. 6. Law and Economics. The Economic Analysis of Law. Economic Rationality. Economic Efficiency. The Efficiency of the Common Law. The Coase Theorem. An Efficiency Explanation of the Common Law. The Scientific Status of Law and Economics. The Evaluation of Law: Should Law Maximize Wealth? Political Disagreement in Law and Economics. Is Efficiency a Neutral Value? The Value of Efficiency. 7. Feminism and The Law. Feminism v. the Traditional View of Women. Types of Feminism. The Question of Patriarchy. The Question of Privacy: A Radical View. Abortion Rights: Beyond Privacy to Liberty. Abortion Rights: A Liberal View. Abortion Rights: The Liberal or Radical Approach? The Difference Debate. Pornography: Free Speech and Women's Rights. Pornography on Trial: American Booksellers v. Hudnut. Patriarchy Revisited. Conclusion. 8. Race and the Law. Race in America. Affirmative Action in Education. Race and Crime. Discrimination and Disparate Impact. Summary. 9. Critical Legal Studies. The Crits: An Introduction. Legal Reasoning: A Mainstream Account. Legal Reasoning: The Attack Begins. Legal Reasoning: The Crits Attack. Law, Liberty, and Liberalism. The Mainstream v. The Crits. Conclusion. Index.