Readings in the philosophy of law
著者
書誌事項
Readings in the philosophy of law
Prentice Hall, c2001
3rd ed
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内容説明・目次
内容説明
For sophomore/junior courses in Philosophy of Law.
This anthology of classical and contemporary philosophical and legal essays and legal cases focuses on legal philosophy as its own subject-rather than as an outgrowth of social or political philosophy or applied ethics. The essays focus on how law is organized and the particular philosophical issues that law raises. The book requires students to think through actual debates-many of them still live in the courts.
目次
- I. LAW IN ACTION. 1. The Practice of Law. Lawyers' Ethics in an Adversary System, Monroe H. Freedman. Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, Peter Gabel and Paul Harris.The Lawyer as Friend, Charles Fried. The Lost Lawyer, Anthony Kronman. 2. The Rule of Law. Magnitude and Importance of Legal Science, David Dudley Field. Eight Ways to Fail to Make Law, Lon Fuller. The Problem of the Grudge Informer, Lon Fuller. Grudge Informers and the Rule of Law, H.L.A. Hart. The Rule of Law and Its Virtue, Joseph Raz. 3. The Moral Force of Law. Crito, Plato. The Justification of Civil Disobedience, John Rawls. On Not Prosecuting Civil Disobedience, Ronald Dworkin. 4. Elements of Legal Reasoning. On Interpretation: The Adultery Clause of the Ten Commandments, Sanford Levinson. Stare Decisis: The Use of Precedent, C. Gordon Post. Rules of Interpretation, William Blackstone. A Case Study in Interpretation: The Mann Act, Edward H. Levi. Cases Interpreting The Mann Act: Caminetti v. U.S.
- Mortensen v. U.S.
- and Cleveland v. U.S. Can a Murderer Inherit? Riggs v. Palmer. II. THE NATURE OF LAW 5. Natural Law and Legal Positivism: Classical Perspectives. Summa Theologica, Thomas Aquinas. The Province of Jurisprudence Determined, John Austin. 6. Formalism and Legal Realism. Preface to Cases on the Law of Contract, Christopher Columbus Langdell. A Treatise on the Conflict of Laws, Joseph H. Beale. The Path of the Law, Oliver Wendell Holmes. Realism and the Law, Jerome Frank. Interpretation as Formal, Tony Honore. 7. The Contemporary Debate: Hart versus Dworkin. Positivism and Separation of Law and Morals, H. L.A.Hart. Law as the Union of Primary and Secondary Rules, H.L.A. Hart. The Model of Rules, Ronald Dworkin. "Natural" Law Revisited, Ronald Dworkin. 8. Law and Economics. The Economic Approach to Law, Richard A. Posner. Law and Economics: An Analysis and Critique, Andrew Altman. 9. Critical Legal Theory and Feminist Jurisprudence. Critical Legal Studies, Robert W. Gordon. Toward a Theory of Law and Patriarchy, Janet Rifkin. Jurisprudence and Gender, Robin West. Legal Realism, Critical Legal Studies, and Dworkin, Andrew Altman. Skepticism, Objectivity and Democracy, Ronald Dworkin. III. PHILOSOPHICAL ISSUES IN CRIMINAL LAW. 10. Punishment: Theory and Practice. Who Should Be Punished? The Case of the Dog Provetie. Capital Punishment: Gregg v. Georgia. The Utilitarian Theory of Criminal Punishment, Richard B. Brandt. Persons and Punishment, Herbert Morris. Restitution: A New Paradigm of Criminal Justice, Randy E. Barnett. Legal Cases In Criminal Law: Racial Bias in Sentencing: McClesky v. Kemp. Cruel and Unusual Punishment: Rummel v. Estelle. 11. Problems of Criminal Liability. Survival on a Lifeboat: The Queen v. Dudley and Stephens. The Principles of Criminal Law, Richard B. Brandt. Intention, H.L.A. Hart. Attempting the Impossible: United States v. Ovieda and People v. Dlugash. Rape, Susan Estrich. The Battered Woman's Defense, Catharyn Jo Rosen. Is the Insanity Test Insane?, R.J. Gerber. What Is So Special about Mental Illness?, Joel Feinberg. The Cultural Defense in the Criminal Law, Editors, Harvard Law Review. 12. The Rights of Defendants. Convicting the Innocent, James McCloskey. A Debate on the Exclusionary Rule, Malcolm Richard Wilkey and Stephen H. Sachs. Interrogation and the Right to Counsel: Miranda v. Arizona, Brewer v. Williams, and Rhode Island v. Innis. Criminal Justice and the Negotiated Plea, Kenneth Kipnis. The Race Card and Jury Nullification, Randall Kennedy. IV. PHILOSOPHICAL ISSUES IN CIVIL LAW. 13. Compensating for Private Harms: The Law of Torts. Negligence, William Prosser. Foreseeable Risk: Stone v. Bolton. Negligence and Due Care: Palsgraf v. Long Island Railroad Co. Tort Liability and Corrective Justice, Jeffrie G. Murphy and Jules L. Coleman. Legal Cases in Tort Law: Efficiency and the Law: United States v. Carroll Towing Company. Liability without Causation? Summers v. Tice. A Duty to Rescue? Yania v. Bigan, Farwell v. Keaton, and McFall v. Shimp. Wrongful Life and Wrongful Birth: Berman v. Allan. 14. Private Ownership: The Law of Property. Property, John Locke. Property and Sovereignty, Morris Raphael Cohen. Legal Cases in Property: Property Acquisition: Haslem v. Lockwood. Taking Without Compensation: Penn Central Transportation Co. v. New York City. 15. Private Agreements: the Law of Contract. The Basis of Contract, Morris Raphael Cohen. Contract as Promise, Charles Fried. Legal Cases in Contract Law: Surrogate Mother Contracts: In the Matter of Baby M. Employment Contracts: Lochner v. New York
- Muller v . Oregon
- Coppage v. Kansas
- and West Coast Hotel Co. v. Parrish. V. PHILOSOPHICAL ISSUES IN CONSTITUTIONAL LAW. 16. Constitutional Government and the Problem of Interpretation. The Political Meaning of Constitutionalism: British, French and American Perspectives, Ulrich K. Preuss. Debating Ratification of the U.S. Constitution: Robert Yates, Thomas Jefferson, James Madison, and Alexander Hamilton. The Notion of a Living Constitution, William H. Rehnquist. Constitutional Cases, Ronald Dworkin. Precommitment and Disagreement, Jeremy Waldron. Democracy, Judicial Review, and the Special Competency of Judges, John Arthur. Precedent, Legitimacy and Judicial Review: Planned Parenthood v. Casey. 17. Freedom of Religion, Speech and Privacy. A Letter Concerning Religious Toleration, John Locke. Legal Cases on Religious Freedom: School Prayer: Engel v. Vitale. Religious Freedom and Public Education: Wisconsin v. Yoder. Secular Humanism and Religious Establishment: Smith v. Board of Education. On Liberty, John Stuart Mill. Legal Cases on Political Speech: Foundations of Political Speech: Schenck v. United States and Whitney v. California. Flag Burning: Texas v. Johnson. Nazi Marches: Village of Skokie v. National Socialist Party. Legal Cases on Obscenity and Pornography: Obscenity: Paris Adult Theatre v. Slaton. Pornography and Women: American Booksellers v. Hudnut. Privacy, Homosexuality and the Constitution, John Arthur. 18. Equality and the Constitution Justice Engendered, Martha Minow. Equality, Race and Gender, Peter Singer. Affirmative Action: An Exchange, Ronald Dworkin and Respondents. Wartime Internment of Japanese Americans: Korematsu v. United States. Gender Discrimination: Michael M. v. Sonoma County Superior Court. Legal Cases on Equality versus Free Speech: Speech Creating a "Hostile Environment": Harris v. Forklift Systems. Campus Speech Codes: Doe v. University of Michigan. Appendix: The Bill of Rights and the Fourteenth Amendment.
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