PO 445

This course will examine law in a philosophical light and as moral theory. We will endeavor to define the moral and political values embodied in the Anglo-American legal tradition by discussing political and legal philosophy, judicial opinions, and even a few social science articles. In particular, the course will revolve around two questions: What is law? And, how does the law balance ideals of responsibility and freedom? While we will often use legal cases and other materials in our work, our primary purpose is to examine the philosophical questions underlying Anglo-American law. This course will not teach you any practical law, nor is it meant to prepare you for law school.

Course Requirements and Methods of Evaluation

The course requirements include four papers. Three of these papers will be three to four page essays which will ask you the readings and our discussion to questions of public policy or legal cases. I will provide you with choices of assignments for each topic; you must submit one of these papers before the deadlines provided in the syllabus and may submit only one per topic. Several of these papers may be assigned as hypothetical legal cases, however, most will take the form of essay questions. A final paper, divided into two essays, will require an overview of the entire course although it will emphasize material covered in the later part of the semester. You will wish to write several drafts of all your work; a style sheet is attached to this syllabus.

Your grade will be calculated as follows:

Participation 15%

Final Paper 25%

Policy on Attendance: Because of the difficulty students face in understanding the material when they do not regularly attend class, I will penalize those students who do not attend class on a regular basis. Any student who misses seven or more classes will have their course grade reduced one full grade. Any student who misses twelve or more classes will fail the course.

Non-negotiable Policy on Late Papers and Unsubmitted Work

Papers will be accepted until 5pm on the date due. Because students should NOT miss class to print out papers, I will lower the grade on a paper one full grade if you submit that paper on a day that you were absent from class without an otherwise justified reason for that absence. Late papers will lose one full grade if submitted within a week of due date; after a week, papers will not be graded at all. Failure to submit any assignment during the semester will result in automatic failure of the entire course.

Miscellaneous Unfair Policies

All quotes must be cited as such and include a clear reference to the work from which they were drawn; they will otherwise be treated as plagiarism. All use of materials other than course materials must be accompanied by full citations. All work in this course is assigned as individual work: working as groups or teams is strongly discouraged (and may be treated as cheating). You are encouraged to go to the Writing Lab for help with your work, however, you are discouraged from seeking all but the most casual assistance with your writing from others; this includes spouses and other family members. If you intend to submit a paper which significantly draws upon work for another class, or if you are planning on submitting substantially similar papers to both my class and a class for another instructor, you must first receive explicit permission to do so from both myself and the other instructor. Failure to do so will result in a failing grade for the course and other disciplinary action.

One final warning: Keep a copy (electronic or printed) of all written work submitted. I am as capable of losing your work as you are.

Required Materials

There are two required books that may be purchased at the BSU Bookstore: David M. Adams, Philosophical Problems in the Law, 2^nd Ed. (Wadsworth, 1996), henceforth PPL, and Lief Carter, Austin Sarat, Mark Silverstein, and William Weaver, New Perspectives on American Law (Carolina Academic Press, 1997), hereafter NAPL . A packet of readings will be available on reserve at Albertson Library and for your copying enjoyment at the copy center in the Education building. That packet may be supplemented at several points during the semester as circumstances dictate.

Disclaimer: This syllabus is not a contract. All dates are approximate and I reserve the right to add to, delete from, or otherwise modify this syllabus. In other words, you are responsible for everything listed here, but I am not. Life is not fair.

PPL: Jackson, "Opening Address for the United States, Nuremberg Trials," 5; Wyzanski, Jr., "Nuremberg: A Fair Trial?,"12; Fuller, from The Morality of Law, 47; The Case of the East-German Guards, 142; The Problem of the Grudge Informer,149.

Jan. 26, 28 - Natural Law

PPL: King, Jr., "Letter from Birmingham Jail," 25; Finnis, "A Defense of Natural Law," 52; Dworkin, "'Natural' Law Revisited," 93; Riggs et al. v. Palmer, 143; The Antelope, 146.

Feb. 2, 4 -The Positivist Conception

PPL: Hart, "Law as the Union of Primary and Secondary Rules," 29; Hart, "Positivism and the Separation of Law and Morals," 37; Holmes, "The Path of the Law," 67; Hutcheson, "The Judgement Intuitive," 73; Dworkin, "Model of Rules," 81; Unger, "The Rule of Law," 102.

Feb. 9, 11 - Contracts and Responsibility

NPAL: Contracts, 295-306; Lucy v. Zehmer, 301; "Seven Elements of Contract Law," 309; Hamer v. Sidway, 314; Feinberg v. Pfeiffer Co., 316; Webb v. McGowin, 322; Contract Law in American Political History, 326-333; Toker v. Westerman, 333; Stambovsky v. Ackley, 335; In The Matter of Baby M, 341.

Feb. 16 - The Possession and Transfer of Property

NAPL: Pierson v. Post, 367; Young against Hichens, 368; Wetherbee v. Green, 371; The Isle of Royale Mining Co. v. Hertin, 374; O'Keeffe v. Snyder, 378; Real Property, 401-408.

February 18 - 1st Paper Due (you must have turned in one essay by this date).

Feb. 18, 23 - Property, Its Use by Others, and Excluding Others

NAPL: Commonwealth Bldg. Corporation v. Hirshfield, 394; Edwards v. Habib, 396; Covenants, 408; Tulk v. Moxhay, 409; Shelley v. Kraemer, 410; Barrows v. Jackson, 415; Finn v. Williams, 438; Marrone v. Washington Jockey Club, 446; Stoner v. Zucker, 447

Feb. 25, March 2 - Property and Regulation

NAPL: Bennis v. Michigan, 388; Zoning, Takings, and the Police Power, 419; Pennsylvania Coal Company v. Mahon, 421; Lucas v. South Carolina Coastal Council, 424; City of Cleburne, Texas v. Cleburne Living Center, Inc., 433

March 4 - Responsibility for Harm - Torts

NPAL: Torts in Common Law, 209-221; Vosburg v. Putney, 222; Field v. Philadelphia Electric, 289

March 9, 11 - Torts, Positive Responsibilities, and Special Relationships

NAPL: MacPherson v. Buick Motor Co., 254; Ira S. Bushey & Sons, v. U. S., 262; Tarasoff v. Regents of University of California, 274.

PPL: Acts, Omissions, and the Duty to Rescue, 548; McFall v. Shimp, 551; Yania v. Bigan, 573.

March 16, 18 - Defining Cause and Negligence

NAPL: Sindell v. Abbot Laboratories, 230; Wood v. Pennsylvania R.R. Co., 236; U. S. v. Carroll Towing Co., 240; Kumkumian v. New York, 245.

PPL: Causation and Liability, 510; Lynch v. Fisher, 514; Palsgraf v. Long Island Railroad, 518; Keeton, Causation, 524; Thomson, The Decline of Cause, 538; Summers v. Tice, 571.

March 20 - 2nd Paper Due (you must have turned in two essays by this date).

March 20-28 - Spring Break

March 30 - Strict Liability and No-Fault

PPL: Hammontree v. Jenner, 491; Coleman, Justice and the Costs of Automobile Accidents, 493; Epstein, Automobile No-Fault Plans: A Second Look at First Principles, 501.

NAPL: The Nitroglycerine Case, 248; Madsen v. East Jordan Irrigation, 250; Micallef v. Miehle, 259.

April 1, 6 - Crime and Morality

PPL: Griswold v. Connecticut, 123; Bowers v. Hardwick, 128; Bork, The Right of Privacy, 133

Arthur, Personal Privacy, 136; The Limits of Law to Enforce Morality, 155; Mill, On Liberty, 162; Kendall, The "Open Society" and Its Fallacies, 167; Pincoffs, The Enforcement of Morality, 176; Baker v. Arkansas, 236; Fletcher, The Significance of Suffering, 336

NAPL: Model Penal Code Section 2.02, 140; New Jersey v. Sikora, 142; Morissette v. U.S., 148; Regina v. Morgan, 154; State v. Ollens, 156; Girouard v. State, 159; People v. Kibbe, 169

April 13 - The Law of Attempts

NAPL: Model Penal Code Section 5.01, 83; People v. Dlugash, 84; "Criminal Attempt and the Theory of the Law of Crimes," 90; People v. Rizzo et al., 119

April 15 - Crime without Intent

PPL: Strict Criminal Liability, 359; People v. Hickman, 361; Fletcher, Reflections on Felony-Murder, 364; Kelman, Strict Liability: An Unorthodox View, 370.

NAPL: People v. Washington, 163

April 22 - 3rd Paper Due (you must have turned in all three essays by this date).

April 20, 22 - Necessity and Self-Defense

NPAL: The Queen v. Dudley & Stephens, 182; State v. Warshow, 186; New Jersey Statutes Section 2C:3- 4, 191; People v. Goetz, 192; People v. Ceballos, 196; State v. Norman, 199.

PPL: Excuse, 377; Rosen, The Battered Woman's Defense, 384; State v. Leidholm, 475.

April 27 - Insanity and Crime

PPL: State v. Cameron, 398; Morris, The Abolition of the Insanity Defense, 401; Kadish, The Decline of Innocence, 406.

NAPL: Model Penal Code Section 4.01, 173; People v. Drew, 175.

April 29, May 4 - Theories of Punishment

PPL: Lewis, The Punishment That Leaves Something to Chance, 351; The Aims and Limits of Criminal Punishment, 414; Benn and Peters, The Utilitarian Case for Deterrence, 416; Moore, The Argument for Retributivism, 420; Payne v. Tennessee, 425; Gregg v. Georgia, 447; The Case of the Dog "Provetie," 477; Rummel v. Estelle, 478.

PPL: Barnett, Restitution, 430; Shame, Cruelty, and Death, 437; Goldschmitt v. Florida, 440; Massaro, Shame, Culture, and American Law, 442.

Last Day of Class. Thurs. May 6.

May 6 - Final Paper Assigned. Final Paper Due Wed. May 12 before 12 pm (noon) in instructor's mailbox or office. No late papers will be accepted after 5 pm on May 14.

Over the course of the semester, you must write three short papers, plus a final paper. You must submit each of these papers before the date indicated on the syllabus or your paper will be dropped one full grade. At the conclusion of each section, I will provide you with several questions or hypothetical legal cases which you will asked to answer or solve in your own inimitable manner. In writing the papers, you should follow these guidelines:

1) Organization.

a) Describe the philosophical and legal questions presented by the assignment. You should consider which questions are most important, and which must be resolved in order to answer others.

b) Make sure that you have a strong thesis statement in your introduction. Do not be afraid to revise your thesis statement as your argument develops, but you should ensure that your argument matches your thesis statement throughout. Constantly ask yourself how a particular sentence relates to your larger argument, and what your goal at the moment is. A conclusion which restates the thesis, summarizes the argument, and suggests some of the argument's implications and significance is also crucial. To summarize the entire process: tell me what you're going to tell me, tell me, tell me what you told me. This not only makes it easier for your reader, but also guides the author.

2) Format

a) Typed, three to four pages, double-spaced, with one inch margins all around. Do NOT exceed four pages. Use a sufficiently dark ribbon and a twelve point (ten characters per inch) or larger font. Violators will be forced to purchase new bifocals for the instructor.

b) Prose must be grammatically correct, with proper usage, and some attention to style. If you wish to argue persuasively, you must write in language that your reader will easily understand. Proofreading and spellchecking are expected; a poorly executed and careless paper displays the authors' disrespect for the reader.

3) Proper Style (trifles which drive me absolutely raving bananas).

a) Avoid long quotes. However, if you do have a quotation longer than two full lines, please block quote (double indent and single space). Do not place quotation marks at either end of a block quote.

b) Capitalize proper nouns, ie. Congress, First Amendment. Do not capitalize adjectives, ie. congressional, religious. The President has presidential powers.

c) Be aware of the differences between possessives and plurals. "It is" is properly abbreviated "it's," whereas "its" is appropriate when indicating the third person gender neutral possessive. The use of an apostrophe to signal a plural noun is strictly verboten. The lack of an apostrophe in a possessive noun will be punished. There/their and that/ which confusion may also be treated as the sins they are.

d) Punctuation belonging to a quote belongs inside of the quotation marks. You do not need a comma before all quotations, although it may be appropriate in particular instances (see a grammar text). The use of ellipses (...) is discouraged.

e) Thesaurus abusers will be required to enter an appropriate twelve step program. A word is a terrible thing to waste.

f) The ultimate authority for all rules of style is William Strunk, Jr. and E.B. White's The Elements of Style (MacMillan, any edition). If you do not own a copy, buy one. Read it while revising your own work. It will serve you well. For a better understanding of grammar, please refer to Margaret Shertzer, The Elements of Grammar or to any recent edition of the Merriam-Webster Collegiate Dictionary, which contains a section on proper usage. The MLA Handbook and the University of Chicago Manual of Style are also good resources for grammatical and stylistic usage.