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PHILOSOPHICAL PROBLEMS IN THE LAW is the perfect introduction to the philosophy of law. This collection of articles and cases helps you consider philosophical problems associated with the law through examples, case studies, and decision scenarios. Case examples and recent decisions such as Boumediene v. Bush (rights of Guantanamo detainees) and Brown v. Entertainment Merchants Association (freedom of expression and violent video games) coupled with new readings help you see the real-world relevance of what you are learning.
Preface. 1. THE NATURE OF LAW AND LEGAL REASONING. Philosophy and the Law. What Is Law? Trial of Border Guards. Robert H. Jackson, Opening Address for the United States, Nuremberg Trials. Charles E. Wyzanski, Jr., Nuremberg: A Fair Trial? Statement of President Slobodan Milosevic on the Illegitimacy of the Hague "Tribunal." Prosecutor v. Slobodan Milosevic. Study Questions. Classical Theories of Law. Carlos Nino, Legality and Justice: A Fictional Case. John Austin, Legal Positivism. Brian Bix, Inclusive Legal Positivism and the Nature of Jurisprudential Debate. H. L. A. Hart, Positivism and the Separation of Law and Morals. Lon L. Fuller, Positivism and Fidelity to Law. Thomas Aquinas, What Is Law? From Summa Theologiae. Martin Luther King, Jr., Letter from Birmingham Jail. Study Questions. Modern Theories of Law. Oliver Wendell Holmes, The Path of the Law. Jerome Frank, A Realist View of the Law. Mark Tushnet, Critical Legal Studies: An Introduction to Its Origins and Underpinnings. Andrew Altman, Critical Legal Studies and Liberalism. Ronald A. Dworkin, Law As Integrity. Study Questions. Contemporary Perspectives. Richard A. Posner, The Economic Approach to Law. Margaret Jane Radin, The Pragmatist and the Feminist. Angela P. Harris, Race and Essentialism in Feminist Legal Theory. Richard Delgado and Jean Stefancic, Hallmark Critical Race Theory Themes. Study Questions. Cases for Further Reflection. Riggs et al. v. Palmer. Herman Melville, Billy Budd. The Antelope. Lon L. Fuller, The Problem of the Grudge Informer. 2. CONSTITUTIONAL LAW: INTERPRETATION AND THE FIRST AMENDMENT. Legal Reasoning and Constitutional Interpretation. Smith v. U.S. Church of the Holy Trinity v. U.S. Antonin Scalia, The Role of U.S. Federal Courts in Interpreting the Constitution. Ronald A. Dworkin, Comment on Scalia. Robert Bork, The Right of Privacy. Study Questions. Boundaries of the Law: Freedom of Expression and Enforcing Morality. South Florida Free Beaches, Inc., v. City of Miami, Florida. John Stuart Mill, On Liberty. Patrick Devlin, The Enforcement of Morals. H. L. A. Hart, Law, Liberty, and Morality. Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality. Cohen v. California. Joel Feinberg, A Ride on the Bus. Michael A. Newdow v. United States of America. Study Questions. Obscenity and Pornography. Ashcroft v. The Free Speech Coalition. American Booksellers Association v. Hudnut. Joel Feinberg, Obscenity as Pornography. Catherine MacKinnon, Pornography: On Morality and Politics. Study Questions. Cases for Further Reflection. Griswold v. Connecticut. Lawrence et al. v. Texas. Minersville School District v. Gobitis. Texas v. Johnson. People of the State of Michigan v. Timothy Joseph Boomer. Reynolds v. United States. 3. CONSTITUTIONAL LAW: EQUAL PROTECTION OF THE LAWS. Equal Protection Law, Racial Discrimination, and Affirmative Action. Barbara Grutter v. Lee Bollinger, et al. Peter Westen, Puzzles About Equality. Naomi Zack, What Is Race? Thomas Nagel, A Defense of Affirmative Action. Shelby Steele, Affirmative Action. House Resolution 40: Reparations to African Americans. Cato v. U.S. Study Questions. Sexual Orientation, Gender, and Equality. Baehr v. Lewin. Cass R. Sunstein, Homosexuality and the Constitution. Martha Minow, The Dilemma of Difference. Richard Wasserstrom, The Assimilationist Ideal. Kimberle Crenshaw, A Black Feminist Critique of Antidiscrimination Law. Study Questions. Equality, Parenthood, and Family Law. Michael H. v. Gerald D. J. M. Balkin, A Critique of Michael H. v. Gerald D. Janet L. Dolgin, Family Law in Transition. Johnson v. Calvert. Alexander Morgan Capron, Too Many Parents. Study Questions. Cases for Further Reflection. Bush v. Gore. Loving v. Virginia. U.S. v. Virginia. Michael M. v. Superior Court of Sonoma County. U.S. v. Clary. 4. CRIMINAL LAW. What Is a Crime? People v. Dlugash. Douglas N. Husak, Intent. Sanford H. Kadish, The Criminal Law and the Luck of the Draw. Study Questions. Justification and Excuse. Paul H. Robinson, The Bomb Thief and the Theory of Justification Defenses. State v. Leidholm. Cathryn Jo Rosen, The Battered Woman's Defense. State v. Cameron. Norval Morris, The Abolition of the Insanity Defense. Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered. Study Questions. Punishment and Responsibility. Lockyer v. Andrade. David Dolinko, The Future of Punishment. Jeremy Bentham, A Utilitarian Theory of Punishment. Michael Moore, The Argument for Retributivism. H. L. A Hart, Punishment and Responsibility. Study Questions. The Death Penalty. Atkins v. Virginia. Ernest van den Haag, The Death Penalty Once More. H. A. Bedau, A Reply to van den Haag. McCleskey v. Kemp. Randall Kennedy, Homicide, Race, and Capital Punishment. Study Questions. Cases for Further Reflection. Goldschmitt v. Florida. The Case of the Dog "Provetie." Payne v. Tennessee. Coker v. Georgia. Gregg v. Georgia. 5. THE LAW OF TORT. Justice, Compensation, and Tort. Holden v. Wal-Mart Stores, Inc. Oliver Wendell Holmes, Jr., The Fault Requirement in Tort. Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry. Jules Coleman, Tort Law and Tort Theory. Roger Cramton, Individualized Justice and Mass Torts. Study Questions. Causation and Liability. Lynch v. Fisher. Palsgraf v. Long Island Railroad. H. L. A. Hart and A. M. Honore, Tracing Consequences. Judith Jarvis Thomson, The Decline of Cause. Study Questions. Acts, Omissions, and the Duty to Rescue. McFall v. Shimp. Thomas Babington Macaulay, Against a Legal Duty to Rescue. Ernest Weinrib, The Case for a Duty to Rescue. Study Questions. Cases for Further Reflection. Quirke v. City of Harvey. Derdiarian v. Felix Contracting Corp. Summers v. Tice. Yania v. Bigan. Appendix 1: Legal Citations and Law Reports. Appendix 2: Amendments to the Constitution of the United States. Appendix 3: Legal Resources on the Internet. Glossary.