Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

155 Cards in this Set

  • Front
  • Back
4 types of evaluative standards
aesthetic, rules of etiquette, legal, moral
4 reasons why legal rules are better
they're more important socially, more formal, subject to procedures for deliberate change, and backed by formal coercive sanctions
positive/conventional morality; mala in se
acts that are wrong in themselves
critical/objective morality; mala prohibita
acts that are wrong because they are prohibited by law (ex. overtime parking)
consequential morality
moral theory that decides whether or not something is right based on the result
deontological moralists
moral theories that say some things just are right or wrong.
ethical egoism
an act is right if and only if the result promotes the actor's best interests
an act is right if and only if the result maximizes happiness
Utilitarian view on punishment
punishment makes everyone feel happier overall that they are safe.
Act utilitarian
raw utilitarianism, an act is right if and only if the result maximizes human happiness
rule utilitarianism
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)
Divine command theory
an act is right if and only if it is obedient to God's will/commands; something is wrong because God says so
problem with Divine Command theory
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?
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.
Kant's view on golden rule
does not approximate theory, people are different. Morality is the consideration and respect of others wishes and desires.
Principle of guilt
there must be an act of guilt and there must be a guilty mind and an appropriate connection of the two
temporal concurrence
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
actus reus
an overt, voluntary act contrary to law
duress and actus reus
acts performed under duress count as voluntary under the law
principle of legality/liability
there is no crime without clear, pre-established law
principle of legal ignorance
ignorance of the law is no excuse; harsher than morals in this way
defense of principle of legal ignorance
1. anyone can claim ignorance in court; law is an expression of public morality,
counter to defense of principle of legal ignorance
many laws do not represent public morality
problem with conviction for status crimes
no actus reus. We punish for being likely to commit crime
Robinson v. California
court found unconstitutional law that made drug addiction illegal
Powell v. Texas
court upheld law that made public drunkenness illegal. "public drunk has done something harmful, drug addict has not"
vicarious liability
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)
laws of attempts
the law punishes attempts less severely than completion (except conspiracy, solicitation, I think); sometimes punished for attempting to do impossible.
strict liability
'no fault liability.' No mens rea or fault, only a lack of objective level of care required to be liable.
mens rea
knowledge of circumstances plus foresight of consequences; absence of excusing conditions
transferred intent
unintended consequences of intentional act
constructive intent
going farther than intention
conditional intent
threaten to harm, but no intention (I think)
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)
failure to take reasonable care; care of a reasonable man of ordinary prudence; no subjective element of guilt
2 ways to determine negligence
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)
problems with 'reasonable man' measure
very many people are not average: insane, stupid, rotten judgment, etc
United Novelty Co v. Daniels
guy who cleaned vending machines, flaming rat
Palsgraf v. Long Island RR Co
went over a million times: man with firecrackers, fallen weights
Cardozo's view on causation
not transitive: only liable for foreseeable consequences, otherwise life is too uncertain; known as fault arguement
Andrew's view on causation
transitive: not fair to victim to not blame actor; known as fairness arguement
Simmons revised principle of guilt (what he says the principle we actually use is)
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)
Vincent v. Lake Erie Transportation Co.
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
examples of strict liability in civil law
workmen's compensation, no-fault auto insurance
strict liability: regulatory and public welfare examples
violations of food/drug regulations, anti-pollution laws, liquor regulations
strict liability: basic offenses
sexual crimes, felony murder, statutory rape laws
people v. Stampe
guys robbed bank, in pursuit, cops shot each other, robbers liable
US v Dotterweich
guy who re-packaged drugs found guilty of sending 2 mis-labeled items. Could not know.
Regina v. Prince
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'
People v. Hickman
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
one did the best they could given the circumstances (i.e. self defense)
psychological state of actor would make it unjust to punish. One didn't know, or misunderstood.
mitigating factors
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!'
2 types of excuses
1) 'I didn't mean to:' mistake, ignorance, accident
2) 'I couldn't help it:' insanity
2 insanity rules
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.
arousal of criminal by some other party to a fever pitch of emotion, results in temporary loss of control and crime
provocation accepted as excuse when
marital infidelity, prolonged taunting (racial, religious slurs)
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
moral guilt theory/retributivism
we should not hold someone legally liable unless he has done something morally wrong
economy of threats theory (utilitarianism)
law should recognize legal excuses because it's inefficient not to. Punish only when necessary to get maximum deterrent value out of law
Hart's response to Moral Guilt Theory
morally hysterical; our system as a whole morally defendable; more good than evil in upholding laws
Hart's response to Economy of Threats Theory
what about insane? punish for society? no deterrence. Law is also interested in setting example and deterring people from pretending to be insane
Mercantile Theory; Law as a Choosing system
allow people to choose their fate; don't impose on people who do not have chance to avoid liability; against routinely strict liability
Wootton's defense on strict liability
no mens rea ever, it's trying to 'mind read'; be forward thinking; 'social hygiene'; thinks criminals are sick
Some problems with Wooton's logic:
1) inability to read minds but ability to read social dangerousness? 2)arbitrary condemnation 3) denies rights for social benefit - NOT just
Wasserstrom's limited defense
strict liability should only sometimes be imposed because 1) no deterrent value, 2) counter to standards of culpability; causes people to be more careful
anything can be determined at any point from laws of nature
agrees with determinism, still thinks they're fine
says everything is the individual's descision
3 main benefits of Hart's mercantile theory
1) maximize power of individual 2) choose what consequences come about 3) punishment fits the crime; without these: lose predictive power, lose control
'tough' liability
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.
conditions for imposing tough liability
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
doing harm to others (prohibited by law)
allowing harm to be done
Good Samaritan Laws
prohibit nonfeasance
some forms of good samaritan laws
1) general criminal liability 2) restricted criminal liability 3) civil liability for failure to rescue 4) compensation 5) legal immunity
perfect duty
a duty that must be performed on all occasions, and concerns the rights of others
imperfect duty
I guess something you don't always have to do, for example, giving money to the poor - there are so many.
negative duty
duties to refrain from doing something. These are prefect: always refrain from harming others
positive duty
requiring that we act for others
Jones v. US
kids in the basement case - she had no duty to rescue since she was not receiving payment for it anymore
Only times rescue is required by law:
1) a stature requires it (for example reporting fires) 2) a special relationship: status (parent/child), contractual, or seclusion (no one else can)
Harris/utilitarian view on duty to rescue
help others until it no longer maximizes happines
problem with Harris/utilitarian view on duty to rescue:
no special relationships involved; many don't want to spend life helping others; does not say why we must help others
Mack/Libertarian view on duty to rescue
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
Woozley/Liberal position
some rescues are morally required but not all; risky v. cost-free rescues
duty (v. superogation)
things morally required, failing to do them is morally wrong, doing it is minimum, not praise-worthy
above and beyond what's required, saints/heroes level, earn high moral praise
act utilitarian and duty v. superogation
does not recognize difference between the 2
main arguments against good samaritan laws
1) can't catch everyone who does not rescue
2) requiring this would diminish the moral value of voluntarily rescuing
There is a liberal duty to rescue if (3 things)
1) the rescue is easy
2) rescuer is in special position to rescue
3) costs of rescue are minimal
the "but for" account of causation
the cause of an event is that "but for which" the event would not have occurred
problem with "but for" account
doesn't distinguish between causes and conditions. There are infinite conditions for something to happen, but less direct causes
Hart and Honore's view on omissions
an omission is a cause if it is abnormal in the circumstances; distinguishes what happens in certain cases and what normally happens.
Harris's view on negative causation
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.
Harris's basic argument
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
Harris's reconstructed basic argument
adds: 2) we expect people to prevent harm 4) we have a duty not to cause harm
theory of punishment: retributivism
the only legitimate purpose of a system of criminal justice is to punish immorality
problem with retributivism as a theory of punishment
only concerned with responding to wrongdoing, no concern for social implications or small deterrent value
3 points of retributivist punishment
1) moral guilt required for punishment to be justified 2) moral guilt justifies punishment regardless of consequences 3) punishment fits drime
theory of punishment: utilitarian
the only purpose of criminal system is to promote general welfare
3 points of utilitarian punishment
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
Hart's hybrid theory of punishment
we should distribute punishment like a retributivist, but with the aims of a utilitarian; allows greatest possible freedom
Gilpin's argument against capital punishment
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
triggerman rules
only the one who 'pulled the trigger' can be executed
execution of retarded, Atkins v. Virginia
not made unconstitutional until 2002 with 8th amendment
Mill's view on death penalty
everyone dies, no big deal, death penalty does not show a disregard for human life, shows regard for victim
whole thing about racial prejudice in use of death penalty
comparative justice
treat everyone who commits crime the same way
non-comparative justice
treated the way the law says to be treated
non-comparative injustice
get what you deserve but others not punished
Furman v. Georgia 4 bullets
1) it degrades human dignity
Mack's 3 strategies for GS laws: Positive Duty Strategy
Woozeley: we owe positive duties to strangers
MACK - only if contractual or remedial
Mack's 3 strategies for GS laws: Causation strategy
we have a moral duty not to cause harm, sometimes not preventing is a cause -> harm
MACK - difference between cause and condition
Mack's 3 strategies for GS laws: Responsibility strategy
responsibility to help others, therefore not helping is a cause
Simmons conclusion on GS laws
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
Brennan on 8th amendment (in Furman) a punishment is cruel and unusual if:
1) degrades human dignity 2) is inflicted arbitrarily 3) rejected as wrong or unjust by society 4) unnecessary or ineffective
Guys who like death penalty
Murphy, Burger, Mill
Murphy's contribution to Pro-death penalty
1) death penalty not degrading or severe 2) some criminals deserve death
Burger's contribution to Pro-death penalty
1) safeguards are possible, flexibility must be preserved 2) is is accepted by society
Mill's contribution to Pro-death penalty
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
guys who don;t like death penalty
Brennan, Douglas, Gilpin, White, Murphy*
Brennan's POV anti-death penalty
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
Douglas POV anti-death penalty
inflicted arbitrarily
Gilpin's POV anti-death penalty
1) inflicted arbitrarily 2) unnecessary/does not deter 3) innocent may be irreversibly convicted 4) disregard for human life
White & Murphy*'s POV anti-death penalty
WHITE: unnecessary
MURPHY: worse than life in prison
some points from Murphy on DP
punishment is inherently degrading ad dehumanizing; just because we're a democracy doesn't mean a majority like the death penalty
Mill's harm principle
the sole reason society may interfere with the conduct of an individual is the prevention of harm to others
paternalistic laws
where society uses the law to prohibit one harming themselves
moralistic laws
where society prohibits acts it sees as immoral
private harms (2 parts)
1) violations of basic interests (life, liberty, security) 2) offenses to sensibility (annoyance, discomfort)
public harms (2 types)
1) impairments of public welfare (treason, conterfeiting) 2) violations of governmental interests (bribing, tax fraud)
Intentions of Mills Harm Principle
to rule out laws preventing things that don't hurt anyone (gambling, temperance)
Wolfenden committee
Britain stepped into private lives (no idea)
Devlin's main argument concerning community morals
nothing should be beyond scope of the law; law's job is to enforce community's popular moral code, whatever it may be
Devlin's Control Argument (6 points)
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
Mill's view on public morality/harm
there is a private sphere where law should not be allowed to interfere; some offensive behavior is unavoidable; public consensual immorality not okay
seamless stocking metaphor
if you poke hole in society's morals, whole thing will unravel
Devlin and Hart's disintegration thesis
law is glue holding society together or will fall apart; seamless web
Hart's moral pluralism theory
multiple moralities can survive in society if there is tolerance, public morals always changing, perhaps Devlin is scared of change
Devlin's elastic principles
protect liberty as best we can; society act when disgust is involved; preserve society by preserving morality, not punishing what society dislikes
Feinberg's Private Harm Prinicple
legitimate to prohibit acts which harm other individuals (rape, murder)
Fbergs Public Harm Principle
ok to prohibit acts that harm society as a whole (treason, conterfeiting)
Fbergs Offense Principle
ok to prohibit acts that offend others (nudity, homosexuality, prostitution)
Fbergs paternalism principle
ok to prohibit acts that harm the actor
Fbergs welfare principle
ok to prohibit failure to benefit others (bad samaritan laws)
problem w/ Fbergs Offense principle
no vital interests at stake; self-relying
Fberg's corollaries to Offense Principle (2 parts)
1) standard of universality - some things offend everyone
2) standard of reasonal avoidability - if you can avoid offense, no right to complain
attitude-dependent offensiveness v. natural
A-D O: everyone's attitudes different, something not all offended by (public drunk) NO: something quite commonly offensive (smelly garbage)
conscientious offense v. non-conscientious offense
CN: intention of shocking people into more extreme political positions (fuck the draft shirt)
NC: one offends others not on purpose
Jacobellis v. Ohio
obscene protected by first amendment if has scientific, literary, or intellectual value
3 qualifications for obscene in Miller v. California
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
problems with 3 Miller v. California things
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?
Indiana court
use of porn by men harms women
2 arguments of Longino
1) porn defames women, tells criminal lies 2) harms women in criminal way, encourages men to act like this