Philosophical Problems in the Law / Edition 4

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Overview

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.

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Editorial Reviews

Bruce E. Altschuler
Although Sir Edward Coke may have believed that "the common law itself is nothing else but reason," it hardly seems that way either to students in our introductory law classes or most of those of us who teach them. David Adams' text is aimed primarily at students in undergraduate philosophy of law or jurisprudence courses but the wide range of articles it includes, covering the nature of law and legal reasoning, liberty, equality, criminal law and torts, make it a possible supplementary text for other introductory law courses as well. Adams identifies the diversity of disciplines prelaw students come from, their unfamiliarity with philosophy, and the "drab, technical vocabulary" of the usual primary sources -- judicial opinions and commentaries about them -- as the obstacles any text needs to overcome. His hope is to set abstract topics within a context of contemporary controversies, thus motivating students to care about and engage with the law and legal texts. Each chapter begins with an illustrative case or issue and ends with a set of problems for the student to think about. Chapters are divided by topics into sections, each consisting of cases and articles with contrasting viewpoints and ending with study questions. For example, the chapter on tort law includes sections on the aims of tort, causation and liability, and acts, omissions, and the duty to rescue. Clearly, this is difficult material for undergraduates, especially those without experience in reading such densely reasoned work. Adams seeks to help by providing several introductory pages at the beginning of each section laying out the context in which the selections belong as well as summarizing the content of each. These explanations cover most of the main points clearly and include numerous well chosen examples. Even with this assistance, however, instructors will still need to do a great deal of explaining before expecting students to jump into the controversies. For example, Adams precedes Martin Luther King's "Letter from Birmingham Jail" with a paragraph relating King's appeals to a higher law as justification for civil disobedience to Aquinas' espousal of natural law which Adams had explained in the previous two pages. Given the fact that many students have only limited knowledge of the civil rights struggles of the 1950s and 1960s, additional discussion of the path which led King to jail and the nature of his disagreement with the clergymen he was addressing would also have been helpful. On the other hand, it does seem a bit unfair to ask an author to make up for American society's failure to learn its own history. How much a text can and should explain and how much to leave to the instructor and his/her students is a problem beyond the scope of a mere book review. Although the text includes judicial opinions, it is not a casebook. Most cases are presented at the ends of the chapters to stimulate discussion. An additional 20 or so are mixed in with the far larger number of essays as part of the overall debate. This format lends itself well to class discussions or even more formal debates to encourage student participation. Another possibility would be to select a few of the more provocative cases presented at the ends of chapters for moot court presentations. Adams is successful in choosing topics that should stimulate debate. Most of those in the chapters on liberty and equality are standbys such as affirmative action and restricting hate speech or pornography. The chapter on criminal law mixes perennials like capital punishment and the insanity defense with more recently developed issues such as battered women's syndrome. It also presents abstract debates such as the purpose of punishment and the definition of crime and criminal liability. A good teacher should be able to relate the abstract to the specific, showing how our positions on specific issues are often determined by our beliefs, often not consciously evaluated, on these apparently abstract questions. The essays are well chosen. Many will be familiar but quite a few, such as Harry Subin's "The Criminal Lawyer's `Different Mission': Reflections on the `Right' to Present a False Case," were to me new and provocative. As with any collection, one can quarrel with some of the selections and the book's organization. Beginning the book with international law (focusing on the Nuremberg Trials) adds to student difficulty rather than easing it. The dissimilarity between domestic and international law making, the lack of student knowledge of the historical circumstances of Nuremberg, and the range of additional complicating issues (the meaning of treaties, the defense of following orders, ex post facto laws, and concepts of just and unjust wars) may confuse and discourage students. The main issue presented by this chapter, the basis of law and legal reasoning, is difficult enough without such complications. The rest of the opening chapter does a better job. Perhaps the next, "Classical Theories of Law," would be a better starting point. Using H.L.A. Hart, Martin Luther King and others, it concentrates on the debate between positivism and natural law. Somewhat surprisingly, utilitarianism is discussed at length while social contract theories are omitted entirely. A selection from Locke or Rawls would be a useful addition. Adams then presents what he terms modern theories, focusing on the case method and the legal realist critique of it. The chapter continues with the later challenges of critical legal studies and feminism, after which it presents philosophies of constitutional interpretation. The debate over the right to privacy, using Griswold v. Connecticut and Bowers v. Hardwick as well as essays by Robert Bork and John Arthur, serves to make the abstract debate over interpretation more accessible. The cases for reflection are East German border guards killing those who attempted to escape to the west, Riggs v. Palmer, the 1825 case of the slave ship Antelope, and a Lon Fuller hypothetical about prosecuting informers from an overthrown dictatorship. Given the focus on the right to privacy, the omission of right to die cases is surprising. As indicated above the remaining chapters are similarly organized although more concrete in their controversies. One failure is the lack of connections made between the chapters. For example, the section on equality in Chapter III discusses gender issues yet does not refer back to the material on feminist jurisprudence in the opening chapter. I also wondered why there is a chapter on tort law but none on the other major parts of civil law such as contracts or property. Considering the nearly 600 page length of the book, perhaps space limitations precluded this but, whatever the reason, the author should include a pedagogical justification for his decision. How useful PHILOSOPHICAL PROBLEMS IN THE LAW will be for introductory courses is likely to depend on how many of the topics it uses are covered in a particular course and how amenable the instructor is to Adams' approach. Because the essays and cases are edited, a large number are included. The book is long enough that using only about half could still make its adoption worthwhile.
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Product Details

  • ISBN-13: 9780534584283
  • Publisher: Cengage Learning
  • Publication date: 5/14/2004
  • Edition description: REV
  • Edition number: 4
  • Pages: 640
  • Product dimensions: 7.30 (w) x 9.20 (h) x 1.00 (d)

Meet the Author

David M. Adams received his Ph.D. from the University of Washington and a law degree from Stanford Law School. His publications include articles in legal theory, ethics, social philosophy, and bioethics. He currently teaches at California State Polytechnic University—Pomona, where he serves as the director of the Institute for Ethics and Public Policy.

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Table of Contents

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.

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