Phil 206 Entire Year

Front 1

4 types of evaluative standards

Back 1

aesthetic, rules of etiquette, legal, moral

Front 2

4 reasons why legal rules are better

Back 2

they're more important socially, more formal, subject to procedures for deliberate change, and backed by formal coercive sanctions

Front 3

positive/conventional morality; mala in se

Back 3

acts that are wrong in themselves

Front 4

critical/objective morality; mala prohibita

Back 4

acts that are wrong because they are prohibited by law (ex. overtime parking)

Front 5

consequential morality

Back 5

moral theory that decides whether or not something is right based on the result

Front 6

deontological moralists

Back 6

moral theories that say some things just are right or wrong.

Front 7

ethical egoism

Back 7

an act is right if and only if the result promotes the actor's best interests

Front 8

utilitarianism

Back 8

an act is right if and only if the result maximizes happiness

Front 9

Utilitarian view on punishment

Back 9

punishment makes everyone feel happier overall that they are safe.

Front 10

Act utilitarian

Back 10

raw utilitarianism, an act is right if and only if the result maximizes human happiness

Front 11

rule utilitarianism

Back 11

an act is right if ad only if it conforms to a set of rules, adherence to which causes greater overall happiness than any other set of rules. (promises important, for example)

Front 12

Divine command theory

Back 12

an act is right if and only if it is obedient to God's will/commands; something is wrong because God says so

Front 13

problem with Divine Command theory

Back 13

why are things right or wrong?
-is something right simply because he commands it? this is arbitrary
-or is it right on independent grounds? so why God at all?

Front 14

Kantian

Back 14

treat others as ends in themselves, not as means to your own end; respect the rights of autonomous people to freely determine their own destinies.

Front 15

Kant's view on golden rule

Back 15

does not approximate theory, people are different. Morality is the consideration and respect of others wishes and desires.

Front 16

Principle of guilt

Back 16

there must be an act of guilt and there must be a guilty mind and an appropriate connection of the two

Front 17

temporal concurrence

Back 17

guilty act must go with guilty mind at the same time, act must be intended at that moment. Guilty must be the cause of the act

Front 18

actus reus

Back 18

an overt, voluntary act contrary to law

Front 19

duress and actus reus

Back 19

acts performed under duress count as voluntary under the law

Front 20

principle of legality/liability

Back 20

there is no crime without clear, pre-established law

Front 21

principle of legal ignorance

Back 21

ignorance of the law is no excuse; harsher than morals in this way

Front 22

defense of principle of legal ignorance

Back 22

1. anyone can claim ignorance in court; law is an expression of public morality,

Front 23

counter to defense of principle of legal ignorance

Back 23

many laws do not represent public morality

Front 24

problem with conviction for status crimes

Back 24

no actus reus. We punish for being likely to commit crime

Front 25

Robinson v. California

Back 25

court found unconstitutional law that made drug addiction illegal

Front 26

Powell v. Texas

Back 26

court upheld law that made public drunkenness illegal. "public drunk has done something harmful, drug addict has not"

Front 27

vicarious liability

Back 27

where one person is responsible for the acts of another simply because they were supposed to control the acts of the other (i.e. parent to child, employer to employee)

Front 28

laws of attempts

Back 28

the law punishes attempts less severely than completion (except conspiracy, solicitation, I think); sometimes punished for attempting to do impossible.

Front 29

strict liability

Back 29

'no fault liability.' No mens rea or fault, only a lack of objective level of care required to be liable.

Front 30

mens rea

Back 30

knowledge of circumstances plus foresight of consequences; absence of excusing conditions

Front 31

transferred intent

Back 31

unintended consequences of intentional act

Front 32

constructive intent

Back 32

going farther than intention

Front 33

conditional intent

Back 33

threaten to harm, but no intention (I think)

Front 34

recklessness

Back 34

conscious disregard of a substantial and justifiable risk to others; no intention, but one still subjects others to risk. subjective v. objective (where objective is negligence or strict liability)

Front 35

negligence

Back 35

failure to take reasonable care; care of a reasonable man of ordinary prudence; no subjective element of guilt

Front 36

2 ways to determine negligence

Back 36

level of risk others are exposed to; does exposing to risk have social importance (i.e. flying a plane is very risky, but travel important)

Front 37

problems with 'reasonable man' measure

Back 37

very many people are not average: insane, stupid, rotten judgment, etc

Front 38

United Novelty Co v. Daniels

Back 38

guy who cleaned vending machines, flaming rat

Front 39

Palsgraf v. Long Island RR Co

Back 39

went over a million times: man with firecrackers, fallen weights

Front 40

Cardozo's view on causation

Back 40

not transitive: only liable for foreseeable consequences, otherwise life is too uncertain; known as fault arguement

Front 41

Andrew's view on causation

Back 41

transitive: not fair to victim to not blame actor; known as fairness arguement

Front 42

Simmons revised principle of guilt (what he says the principle we actually use is)

Back 42

actus reus plus connection between the source of fault and the actus reus (where being at fault could involve either: 1) mens rea, 2) carelessness, or 3) knowingly causing harm)

Front 43

Vincent v. Lake Erie Transportation Co.

Back 43

ship owner didn't want to leave dock or storm would sink him. He stayed, and storm caused his ship to destroy dock. Court found ship owner responsible, but admitted he had no choice

Front 44

examples of strict liability in civil law

Back 44

workmen's compensation, no-fault auto insurance

Front 45

strict liability: regulatory and public welfare examples

Back 45

violations of food/drug regulations, anti-pollution laws, liquor regulations

Front 46

strict liability: basic offenses

Back 46

sexual crimes, felony murder, statutory rape laws

Front 47

people v. Stampe

Back 47

guys robbed bank, in pursuit, cops shot each other, robbers liable

Front 48

US v Dotterweich

Back 48

guy who re-packaged drugs found guilty of sending 2 mis-labeled items. Could not know.

Front 49

Regina v. Prince

Back 49

man had sex with girl who claimed to be 18. She looked and dressed 18 but was actually 15. Was accused of 'soiling young girl'

Front 50

People v. Hickman

Back 50

men robbing liquor store, mid-chase, man ran towards police with gun so they shot him, turns out he was detective, robbers held liable for death

Front 51

justifications

Back 51

one did the best they could given the circumstances (i.e. self defense)

Front 52

mistake

Back 52

psychological state of actor would make it unjust to punish. One didn't know, or misunderstood.

Front 53

mitigating factors

Back 53

defense enhancements; only reduce punishment/liability (i.e. 'the stolen jewels fell into my lap!' or 'at least I cleaned up the dead body for the kids!'

Front 54

2 types of excuses

Back 54

1) 'I didn't mean to:' mistake, ignorance, accident
2) 'I couldn't help it:' insanity

Front 55

2 insanity rules

Back 55

McNaughton rules and A.L.I. (or Brawner rules). Both cite the actor's inability to realize what they did and to conform to the law, know that it's wrong.

Front 56

provocation

Back 56

arousal of criminal by some other party to a fever pitch of emotion, results in temporary loss of control and crime

Front 57

provocation accepted as excuse when

Back 57

marital infidelity, prolonged taunting (racial, religious slurs)

Front 58

duress

Back 58

subject to unlawful threat of force by another, and where that threat produces a reasonable fear of death or bodily injury and results in a criminal act

Front 59

moral guilt theory/retributivism

Back 59

we should not hold someone legally liable unless he has done something morally wrong

Front 60

economy of threats theory (utilitarianism)

Back 60

law should recognize legal excuses because it's inefficient not to. Punish only when necessary to get maximum deterrent value out of law

Front 61

Hart's response to Moral Guilt Theory

Back 61

morally hysterical; our system as a whole morally defendable; more good than evil in upholding laws

Front 62

Hart's response to Economy of Threats Theory

Back 62

what about insane? punish for society? no deterrence. Law is also interested in setting example and deterring people from pretending to be insane

Front 63

Mercantile Theory; Law as a Choosing system

Back 63

allow people to choose their fate; don't impose on people who do not have chance to avoid liability; against routinely strict liability

Front 64

Wootton's defense on strict liability

Back 64

no mens rea ever, it's trying to 'mind read'; be forward thinking; 'social hygiene'; thinks criminals are sick

Front 65

Some problems with Wooton's logic:

Back 65

1) inability to read minds but ability to read social dangerousness? 2)arbitrary condemnation 3) denies rights for social benefit - NOT just

Front 66

Wasserstrom's limited defense

Back 66

strict liability should only sometimes be imposed because 1) no deterrent value, 2) counter to standards of culpability; causes people to be more careful

Front 67

determinism

Back 67

anything can be determined at any point from laws of nature

Front 68

compatablist

Back 68

agrees with determinism, still thinks they're fine

Front 69

libertarian

Back 69

says everything is the individual's descision

Front 70

3 main benefits of Hart's mercantile theory

Back 70

1) maximize power of individual 2) choose what consequences come about 3) punishment fits the crime; without these: lose predictive power, lose control

Front 71

'tough' liability

Back 71

the goal of the law is not to punish those who are VERY careful. so stricter than negligence but not as strict as strict liability.

Front 72

conditions for imposing tough liability

Back 72

1) regulated activity is highly specialized 2) end advanced by statute 3) special position of control held liable 4) punishment assigned without statute = fault; require that people take MORE THAN reasonable care

Front 73

misfeasance

Back 73

doing harm to others (prohibited by law)

Front 74

nonfeasance

Back 74

allowing harm to be done

Front 75

Good Samaritan Laws

Back 75

prohibit nonfeasance

Front 76

some forms of good samaritan laws

Back 76

1) general criminal liability 2) restricted criminal liability 3) civil liability for failure to rescue 4) compensation 5) legal immunity

Front 77

perfect duty

Back 77

a duty that must be performed on all occasions, and concerns the rights of others

Front 78

imperfect duty

Back 78

I guess something you don't always have to do, for example, giving money to the poor - there are so many.

Front 79

negative duty

Back 79

duties to refrain from doing something. These are prefect: always refrain from harming others

Front 80

positive duty

Back 80

requiring that we act for others

Front 81

Jones v. US

Back 81

kids in the basement case - she had no duty to rescue since she was not receiving payment for it anymore

Front 82

Only times rescue is required by law:

Back 82

1) a stature requires it (for example reporting fires) 2) a special relationship: status (parent/child), contractual, or seclusion (no one else can)

Front 83

Harris/utilitarian view on duty to rescue

Back 83

help others until it no longer maximizes happines

Front 84

problem with Harris/utilitarian view on duty to rescue:

Back 84

no special relationships involved; many don't want to spend life helping others; does not say why we must help others

Front 85

Mack/Libertarian view on duty to rescue

Back 85

no positive duty to help others, only contractual and remedial (that you caused); would take away rescuers right to live without interference; also slipper slope idea

Front 86

Woozley/Liberal position

Back 86

some rescues are morally required but not all; risky v. cost-free rescues

Front 87

duty (v. superogation)

Back 87

things morally required, failing to do them is morally wrong, doing it is minimum, not praise-worthy

Front 88

superogation/superogatory

Back 88

above and beyond what's required, saints/heroes level, earn high moral praise

Front 89

act utilitarian and duty v. superogation

Back 89

does not recognize difference between the 2

Front 90

main arguments against good samaritan laws

Back 90

1) can't catch everyone who does not rescue
2) requiring this would diminish the moral value of voluntarily rescuing

Front 91

There is a liberal duty to rescue if (3 things)

Back 91

1) the rescue is easy
2) rescuer is in special position to rescue
3) costs of rescue are minimal

Front 92

the "but for" account of causation

Back 92

the cause of an event is that "but for which" the event would not have occurred

Front 93

problem with "but for" account

Back 93

doesn't distinguish between causes and conditions. There are infinite conditions for something to happen, but less direct causes

Front 94

Hart and Honore's view on omissions

Back 94

an omission is a cause if it is abnormal in the circumstances; distinguishes what happens in certain cases and what normally happens.

Front 95

Harris's view on negative causation

Back 95

X's failure to perform A caused consequence B where: X could have done A, A would have prevented B, AND either 1) A is expected or required of X, or 2) B involved harm to human beings.

Front 96

Harris's basic argument

Back 96

1) Our failure to prevent harm causes harm 2) we have a duty not to cause harm 3) so we have a duty to prevent harm 4) so the law ought to compel us to do so

Front 97

Harris's reconstructed basic argument

Back 97

adds: 2) we expect people to prevent harm 4) we have a duty not to cause harm

Front 98

theory of punishment: retributivism

Back 98

the only legitimate purpose of a system of criminal justice is to punish immorality

Front 99

problem with retributivism as a theory of punishment

Back 99

only concerned with responding to wrongdoing, no concern for social implications or small deterrent value

Front 100

3 points of retributivist punishment

Back 100

1) moral guilt required for punishment to be justified 2) moral guilt justifies punishment regardless of consequences 3) punishment fits drime

Front 101

theory of punishment: utilitarian

Back 101

the only purpose of criminal system is to promote general welfare

Front 102

3 points of utilitarian punishment

Back 102

1) punishment justified with gain in total happiness 2) gain in happiness justifies punishment 3) kind/amount of punishment determined by what produces the most happiness

Front 103

Hart's hybrid theory of punishment

Back 103

we should distribute punishment like a retributivist, but with the aims of a utilitarian; allows greatest possible freedom

Front 104

Gilpin's argument against capital punishment

Back 104

1) no deterrent value 2) juries won't convict 3) possible conviction of innocent 4) unequal treatment 5) shows disregard for life 6) religious reasons 7) irreversible

Front 105

triggerman rules

Back 105

only the one who 'pulled the trigger' can be executed

Front 106

execution of retarded, Atkins v. Virginia

Back 106

not made unconstitutional until 2002 with 8th amendment

Front 107

Mill's view on death penalty

Back 107

everyone dies, no big deal, death penalty does not show a disregard for human life, shows regard for victim

Front 108

McClesky

Back 108

whole thing about racial prejudice in use of death penalty

Front 109

comparative justice

Back 109

treat everyone who commits crime the same way

Front 110

non-comparative justice

Back 110

treated the way the law says to be treated

Front 111

non-comparative injustice

Back 111

get what you deserve but others not punished

Front 112

Furman v. Georgia 4 bullets

Back 112

1) it degrades human dignity

Front 113

Mack's 3 strategies for GS laws: Positive Duty Strategy

Back 113

Woozeley: we owe positive duties to strangers
MACK - only if contractual or remedial

Front 114

Mack's 3 strategies for GS laws: Causation strategy

Back 114

we have a moral duty not to cause harm, sometimes not preventing is a cause -> harm
MACK - difference between cause and condition

Front 115

Mack's 3 strategies for GS laws: Responsibility strategy

Back 115

responsibility to help others, therefore not helping is a cause

Front 116

Simmons conclusion on GS laws

Back 116

Harris is too broad, Mack is too narrow (no general duty). Simmons like liberal view, there is a duty with clear connection and low-cost, and easy

Front 117

Brennan on 8th amendment (in Furman) a punishment is cruel and unusual if:

Back 117

1) degrades human dignity 2) is inflicted arbitrarily 3) rejected as wrong or unjust by society 4) unnecessary or ineffective

Front 118

Guys who like death penalty

Back 118

Murphy, Burger, Mill

Front 119

Murphy's contribution to Pro-death penalty

Back 119

1) death penalty not degrading or severe 2) some criminals deserve death

Front 120

Burger's contribution to Pro-death penalty

Back 120

1) safeguards are possible, flexibility must be preserved 2) is is accepted by society

Front 121

Mill's contribution to Pro-death penalty

Back 121

1) effective deterrent 2) safeguards possible, cost of innocent life worth it 3) shows high regard for human life 4) better than life in prison 5) some criminals deserve death

Front 122

guys who don;t like death penalty

Back 122

Brennan, Douglas, Gilpin, White, Murphy*

Front 123

Brennan's POV anti-death penalty

Back 123

1) degrades human dignity or too sever 2) inflicted arbitrarily 3) rejected by society 4) unnecessary/does not deter 5) disregard for life 6) worse than life in prison

Front 124

Douglas POV anti-death penalty

Back 124

inflicted arbitrarily

Front 125

Gilpin's POV anti-death penalty

Back 125

1) inflicted arbitrarily 2) unnecessary/does not deter 3) innocent may be irreversibly convicted 4) disregard for human life

Front 126

White & Murphy*'s POV anti-death penalty

Back 126

WHITE: unnecessary
MURPHY: worse than life in prison

Front 127

some points from Murphy on DP

Back 127

punishment is inherently degrading ad dehumanizing; just because we're a democracy doesn't mean a majority like the death penalty

Front 128

Mill's harm principle

Back 128

the sole reason society may interfere with the conduct of an individual is the prevention of harm to others

Front 129

paternalistic laws

Back 129

where society uses the law to prohibit one harming themselves

Front 130

moralistic laws

Back 130

where society prohibits acts it sees as immoral

Front 131

private harms (2 parts)

Back 131

1) violations of basic interests (life, liberty, security) 2) offenses to sensibility (annoyance, discomfort)

Front 132

public harms (2 types)

Back 132

1) impairments of public welfare (treason, conterfeiting) 2) violations of governmental interests (bribing, tax fraud)

Front 133

Intentions of Mills Harm Principle

Back 133

to rule out laws preventing things that don't hurt anyone (gambling, temperance)

Front 134

Wolfenden committee

Back 134

Britain stepped into private lives (no idea)

Front 135

Devlin's main argument concerning community morals

Back 135

nothing should be beyond scope of the law; law's job is to enforce community's popular moral code, whatever it may be

Front 136

Devlin's Control Argument (6 points)

Back 136

1) each society has public moral structure 2) above is essential to society's existence 3) society has right to require what is necessary for existence 4) may use criminal law for above 5) even private immorality endangers public morals 6) law can prohibit provate immorality

Front 137

Mill's view on public morality/harm

Back 137

there is a private sphere where law should not be allowed to interfere; some offensive behavior is unavoidable; public consensual immorality not okay

Front 138

seamless stocking metaphor

Back 138

if you poke hole in society's morals, whole thing will unravel

Front 139

Devlin and Hart's disintegration thesis

Back 139

law is glue holding society together or will fall apart; seamless web

Front 140

Hart's moral pluralism theory

Back 140

multiple moralities can survive in society if there is tolerance, public morals always changing, perhaps Devlin is scared of change

Front 141

Devlin's elastic principles

Back 141

protect liberty as best we can; society act when disgust is involved; preserve society by preserving morality, not punishing what society dislikes

Front 142

Feinberg's Private Harm Prinicple

Back 142

legitimate to prohibit acts which harm other individuals (rape, murder)

Front 143

Fbergs Public Harm Principle

Back 143

ok to prohibit acts that harm society as a whole (treason, conterfeiting)

Front 144

Fbergs Offense Principle

Back 144

ok to prohibit acts that offend others (nudity, homosexuality, prostitution)

Front 145

Fbergs paternalism principle

Back 145

ok to prohibit acts that harm the actor

Front 146

Fbergs welfare principle

Back 146

ok to prohibit failure to benefit others (bad samaritan laws)

Front 147

problem w/ Fbergs Offense principle

Back 147

no vital interests at stake; self-relying

Front 148

Fberg's corollaries to Offense Principle (2 parts)

Back 148

1) standard of universality - some things offend everyone
2) standard of reasonal avoidability - if you can avoid offense, no right to complain

Front 149

attitude-dependent offensiveness v. natural

Back 149

A-D O: everyone's attitudes different, something not all offended by (public drunk) NO: something quite commonly offensive (smelly garbage)

Front 150

conscientious offense v. non-conscientious offense

Back 150

CN: intention of shocking people into more extreme political positions (fuck the draft shirt)
NC: one offends others not on purpose

Front 151

Jacobellis v. Ohio

Back 151

obscene protected by first amendment if has scientific, literary, or intellectual value

Front 152

3 qualifications for obscene in Miller v. California

Back 152

1) would average person say appeals to prurient interests? 2) does work depict sexual content in offensive way
3) does it lack value?
if all 3, obscene

Front 153

problems with 3 Miller v. California things

Back 153

1) what about sex-ed tapes?
2) what makes it offensive, many people watch porn
3) how will artist know whether public will find value in work?

Front 154

Indiana court

Back 154

use of porn by men harms women

Front 155

2 arguments of Longino

Back 155

1) porn defames women, tells criminal lies 2) harms women in criminal way, encourages men to act like this