Readings in the philosophy of law
著者
書誌事項
Readings in the philosophy of law
Pearson/Prentice Hall, c2006
4th 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 Adversary System and the Practice of Law. Lawyers' Ethics in an Adversary System, Monroe H. Freedman. An Alternative to the Adversary System, John H. Langbein. 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. Grudge Informers, H.L.A. Hart. The Problem of the Grudge Informer, Lon Fuller. The Rule of Law and Its Virtues, Joseph Raz. 3. The Moral Force of Law. Crito, Plato. The Justification of Civil Disobedience, John Rawls. On Not Prosecuting Civil Disobedience, Ronald Dworkin. II. LEGAL REASONING. 4. Statutes. Interpreting the Adultery Clause of the Ten Commandments, Sanford Levinson. Interpreting the Small Bird Act, Regina v. Ojibway. A Case Study: Interpreting the Mann Act, Edward H. Levi. Cases Interpreting the Mann Act, Caminettiv. U.S.
- Mortensen v. U.S.
- and Cleveland v. U.S. Interpretation, Tony Honore. Who is a Drunk Driver? Kentucky v. Whitt. What is a Vegetable? Nix v. Hadden. Can a Murderer Inherit? Riggs v. Palmer. 5. Precedents. Stare Decisis: The Use of Precedent, C. Gordon Post. Analogical Reasoning, Cass R. Sunstein. Rape, Consent and Mens Rea, Regina v. Morgan. Precedent and Ligitimacy, Planned Parenthood v. Casey. III. THE NATURE OF LAW 6. Classical Perspectives. Traditional Natural Law Theory, Bix. Natural Law: Summa Theologica, Thomas Aquinas. Natural Law: Blackstone's Commentaries, William Blackstone. Legal Positivism, John Austin. 7. Formalism and Legal Realism. The System of Law, Joseph H. Beale. The Path of the Law, Oliver Wendell Holmes. Realism and the Law, Jerome Frank. 8. Morality and the Law. 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. The Dependence of Morality on Law, Tony Honore. 9. International Law. International Law, H.L.A. Hart. The African Slave Trade, U.S. v. La Jeune Eugenie
- The Antelope
- The Armistad. International Law and Individual Responsibility, The International Military Tribunal at Nuremberg. 10. Theories About Law. The Economic Approach to Law, Richard A. Posner. Law and Economics: An Analysis and Critique, Andrew Altman. Critical Legal Studies, Robert W. Gordon. Jurisprudence and Gender, Robin West. Legal Realism, Critical Legal Studies, and Dworkin, Andrew Altman. Skepticism, Objectivity and Democracy, Ronald Dworkin. IV. PHILOSOPHICAL ISSUES IN CRIMINAL LAW. 11. The Justification of Punishment. Who Should Be Punished? The Case of the Dog Provetie. The Utilitarian Theory of Criminal Punishment, Richard B. Brandt. Persons and Punishment, Herbert Morris. The Message of Punishment, Jean Hampton. Restitution: A New Paradigm of Criminal Justice, Randy E. Barnett. 12. The Rights of Defendants. Criminal Justice and the Negotiated Plea, Kenneth Kipnis. Convicting the Innocent, James McCloskey. The Dirty Harry Problem, Carl B. Klockars. 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. Entrapment, United States v. Tobias. 13. Sentencing. Capital Punishment, Gregg v. Georgia. Electric Shock: The Fairest Punishment of All, Graeme Newman. Racial Bias in Sentencing, McClesky v. Kemp. Three Strikes, Rummell v. Estelle. 14. Criminal Responsibility. 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: The Crime That Never Was, Leo Katz. The Battered Woman Syndrome, State v. Leidholm. Rape, Force, and Consent, Susan Estrich. Is the Insanity Defense Insane?, R.J. Gerber. What Is So Special about Mental Illness?, Joel Feinberg. The "Rotten Background" Excuse, United States v. Alexander and Murdock. Executing Mentally Retarded Murderers, Atkins v. Virginia. V. PHILOSOPHICAL ISSUES IN CIVIL LAW. 15. Compensating for Private Harms: The Law of Torts. The Efficiency of the Common Law, Andrew Altman. Negligence, William Prosser. Economic Efficiency and the "Hand Formula," U.S. v. Carroll Towing Company. Foreseeable Risk, Stone v. Bolton. Tort Liability and Corrective Justice, Jeffrie G. Murphy and Jules L. Coleman. Negligence and Due Care: Palsgraf v. Long Island Railroad Co. Loss, Agency, and Responsibility for Outcomes, Stephen R. Perry. Liability without Causation? Summers v. Tice. Legal Causation and the Desert Traveler, Amy Shapiro. A Duty to Rescue? Yania v. Bigan, Farwell v. Keaton, and McFall v. Shimp. Assessing Damages: Wrongful Life and Wrongful Birth, Berman v. Allan. 16. Private Ownership: The Law of Property. Property, John Locke. Property and Sovereignty, Morris Raphael Cohen. Intellectual Property, Richard A. Posner. Property Acquisition, Haslem v. Lockwood. Regulation of Private Property, Pennsylvania Coal Co. v. Mahon. Taking Without Compensation, Penn Central Transportation Co. v. New York City. 17. Private Agreements: the Law of Contract. The Basis of Contract, Morris Raphael Cohen. Contract as Promise, Charles Fried. Unconscionable Contracts, Williams v. Walker-Thomas Furniture Co. 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. VI. PHILOSOPHICAL ISSUES IN CONSTITUTIONAL LAW. 18. Constitutionalism and Democracy. The Federalist Papers, James Madison and Alexander Hamilton. The Political Meaning of Constitutionalism: British, French and American Perspectives, Ulrich K. Preuss. The Notion of a Living Constitution, William H. Rehnquist. Constitutional Cases, Ronald Dworkin. Democracy, Judicial Review, and the Special Competency of Judges, John Arthur. 19. Freedom of Religion, Privacy and Speech. A Letter Concerning Religious Toleration, John Locke. 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. The Right to Privacy, Griswold v. Connecticut. Homosexuality and the Right to Privacy, Lawrence v. Texas. Gay Marriage, Goodridge v. Massachusetts Department of Public Health. Judicial Activism and Gay Marriage: A Debate, Lawrence Tribe and Richard Parker. Of the Liberty of Thought and Discussion, John Stuart Mill. Flag Burning, Texas v. Johnson. Nazi Marches, Village of Skokie v. National Socialist Party. Obscenity, Paris Adult Theatre v. Slaton. Pornography and Women, American Booksellers v. Hudnut. Campus Speech Codes, Doe v. University of Michigan. 20. Equality. Wartime Internment of Japanese Americans, Korematsu v. United States. Racial Equality and Affirmative Action, Ronald Dworkin. Affirmative Action in Universities, Grutter v. Bollinger. Gender Discrimination, Michael M. v. Sonoma County Superior Court. Speech Creating a Hostile Environment, Harris v. Forklift Systems. Appendix: The Bill of Rights and the Fourteenth Amendment.
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