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45 Cards in this Set
- Front
- Back
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Rehnquists Arguments
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1. State has an interest in extending life, even near death.
2. Holding life to be sacred gives people a sense of security. 3. Protects the morality of the doctor profession. 4. Clear and Convincing Evidence that the patient wanted to end his life |
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Dworkin Responses
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1. Interest in preserving a patient's life may go against his interests.
2. His decision requires the assessment of the incompetent, so requiring clear and convincing evidence is setting the bar too high. 3. Rehnquist insensitive to quality of life, these people may be experiencing. 4. Allowing a person to die after a solemn due process dedicated to the patient's best interest will not detract from society's sense of security in life. 5. People agree that quality of life is important. 6. It can be reasonable that people would have signed a living will if they had the chance. 7. Many people fear becoming a burden and causing their loved ones to suffer. 8. Tragedy to live a life we can take no pride in |
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David Hume:
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Self: Hubris to think that human lives are more important than any other kind in the grand scheme.
Life can be worse than death with suffering. Humans have free disposal like all animals. God: Saying that suicide goes against God's will is ridiculous, because how do we know that our decision to prolong a life through medicine is not also going against god's will? Others: We are not causing suffering, we are just creating an absence of pleasure. (weak) |
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Say 5 things about the death with dignity act
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1. > 18 years old
2. 15 days between oral and written request 3. written signed by 2 people one not a hospital member guy 4. 48 hours between written and medication giving outing 5. washington state resident 6. determined by 2 physicians to have less than 6 months to live |
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Doctor's Dilemma
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Care givers have a moral/legal duty to do what's in the patient's best interest
Care givers have a moral/legal duty to respect patient autonomy These interests can collide. |
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2 Cruzan Reasonings
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Prevent abuse from family members/will inners who would benefit from patient death
Avoid irreversible decision only to find out that the patient might have got better or that they really wanted to live after all. |
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Washington v Glucksberg Reasoning
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legal history reveals that assisted suicide is not a fundamental liberty interest, and not covered by 14th
Statute related to compelling state interests: 1 preservation of life 2 protecting the disabled 3 prevention from stressed out suicide mistakes (like they're just stressed is why they do it) 4 slippery slope to involuntary euthenasia |
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Mackinnon porn harm
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1 Degrading
2 Objectifying 3 Can be violent/lead to violence 4 Coercion into preforming |
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Indianapolis ordinance
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A bunch of really specific content things
shows women enjoying pain or rape, being mutilated penetrated by object or animals scenarios of degradation abuse or abasement forbids trafficking porn, coercing people to being in porn or forcing it on anyone. gives a right to action against producer if someone is injured by someone who has seen or read porn |
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Easterbrook arguments
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1 1st amendment forbids content-based regulation of speech
2 Doesn't take into account the context of the work. "political/social commentaries? le miserab? maybe the work as a whole has a greater point that your stupid ordinance is shoving out" 3 Government can already punish harm done during porn production process |
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Lorrenne Clark Arguments
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1 Porn promotes inequality between the sexes
2 Having porn is a negative freedom, in that to have it it simply needs to not be restricted. Equality is a positive freedom for women since society has been dominated by men for so long, and clark argues porn contributes to inequal perception of sexes 4 it is fine to reject a negative freedom for some to have a positive freedom for all women 5 porn objectifies women and creates inequality in the private setting where the man could view her as an object or property. wife raping is probably bad too 6 culture of property vs cult of macho |
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Feinberg Arguments
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1 Porn doesn't have to be degrading to women so it's wrong to prohibit it on that basis. "Ideal pornography" doesn't show either partner dominating the other, just both having sex
2 Cult of Macho causes violent porn and violence and maybe violent porn reinforces cult of macho maybe. 3 Aggression can be reinterpreted as passionate extremes. Dominance might be desire for adoration. 4 Saying that degrading porn defames women strays too far from the legal definition of defamation (and even further from libel/slander) |
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Miller V California
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Definition of obscenity: community standards would find it prurient. patently offensive sexual conduct. no literary or artistic value.
Porn ads not covered lol |
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Altman, thoughts on campus speech
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1 campus is very important for sharing ideas freely
2 rules should be based on wrongfulness of hate speech vs psychological damage hate speech causes 3 rules should be extremely narrow 4 should target that which subordinates victims 5 Not a neutral viewpoint. says that racism sexism and homophobism is wrong |
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RAV v St. Paul arguments decisions scalia
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bunch of kids burned a cross on blacks lawns
1 St paul's ordinance for bias motivated crime. 2 overly broad, invalid under first amendment 3 targets a minority (black hating) opinion, which is what the 1st amend sposed to not do 4 content-based regulation are invalid 5 market place of ideas is one side in blacks favor! |
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Matsuda Lawrence throw down with scalia
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1 Underestimated the gravity of hate crimes and the govs interest in controlling them, and ravs decision handicaps the gov
2 Didn't take into account context of harassment 3 Cross burning is not just another act, it's awful, not just speech it's harm. 4 market place of ideas is already one sided in white's favor because they are superior so we should give blacks a fighting chance lol 5 Scalia implies that littering is illegal but burning cross on lawn is not legal haha |
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Cohen v Cali reasoning
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1 Harlan J majority
2 Doesn't provide for criminalizing an epithet without proof that it causes peace disturbance in general 3 California statue doesn't tell people what is criminal (disturb peace statute) 4 Not a fighting word like in Chaplinsky v New Hampshire 5 It's political |
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Chaplinsky V New Hampshire
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1 god dmned fscist racketeer
2 first amendment doesn't protect fighting words that may incite an immediate breach of the peace 3 slight social value quest for truth, not part of an exposition of ideas 4 benefit outweighed by value of order and peace in society 5 common omnibus of the community would think that the words would cause the addresse to fight 6 narrowly drawn to keep constitution safe. |
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Primoratz
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Igor Primoratz -> against Kant/utilitarian approach to punishment.
Ute is based on false premise that it causes deterrence. Murderers don't consider consequences they consider how to not get caught. Sees people as means rather than people who can think and use moral compasses. Ute doesn't allow for pardons, mercy and whatnot. Punishes crimes of passion more rather than less based on them needing more deterrence. |
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Utilitarian theory of punishment
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Punish always with intention of securing the most favorable balance of happiness (including deterrence and safety and stuff)
Bentham: quantity of pleasure Mill: Quality of pleasure |
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Bentham's Utilitarian theory
Rule of Sufficiency, Adjustment for certainty, immediacy, principle of parsimony |
Only punish up to the point that it takes to deter.
Crimes that can take a long time to get caught for need stricter punishments for stronger deterrence. Punishments should be simple, and not intricate Pleasure and pain are all that matter to humans. Punishment is a pain, but it causes pleasure to others so it should be used to net a pleasure profit. Insane people and people who have other justifications can be accommodated by bentham's view |
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McCloskey on Convicting Innocents
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Innocents get convicted all the time.
police perjury, presumption of guilt, false witnesses, prosecutorial misconduct shoddy police work innocent defense counsel witnesses are **** |
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Retributivism
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Punish the guilty only and always, in proportion to the offense.
A) deservingness B) Retrospectivity C) Proportion Commonsense notion Negligent acts also deserve punishment? People assume justice=retribution punish you just because you did it Premised on stuff from morris and primoratz |
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Herbert Morris
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Retributive punishment is the only fair consequence for a civilized society.
Rules are blessings for some and curses for others, and so those who obey (take on the burden) should reap benefits. Justice = punishing those who advantage themselves by breaking rules. |
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C L Ten
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Morris argument unpersuasive, doesn't defend retributivism well enough.
You can't find the exact amount to retribute so it's hard to reckon the exact punishment. Punishment to offender ignores innocents harmed by that person being punished. Theory of punishment is not able to solve all problems of social inequity. Dubious psychological assumptions: people don't obey law out of self restraint. |
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Compromise Theories:
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Melting pot idea; make the most of each theories components by using it where it excels.; elect one theory or another because no theory is possible.
>Rawls |
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John Rawls: practice of punishment
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A compromise can be reached.
Legislature should be made from utilitarian viewpoint, retributivist theories prevail in carrying out the laws Utilitarianism means well but it might go crazy and have unecessarily cruel punishments. If they allow for punishing innocents for the greater good this will be very apparent. Basically innocents won't get punished and utilitarians get assured the policies created work for the greatest |
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Alan Goldman
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Paradox of punishment
Punishment is required and unjustified. The problem = we can't stop guilty people from getting punished more than they deserve if we create the laws with utilitarian mindset of getting deeterrence and stuff. The problem exists so we should punish less harshly and attack the cause which is stuff like social inequality |
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Hampton
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Punishment needs to educate felons and sshtituff
Deterrence is also important in this system Meant to teach moral knoweledge, and it embraces human freedom |
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Furman v Georgia
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Georgia was in violation of 8th amendment. "cruel and unusual punishment" 8th depends upon standards of decency
jury/judicial discretion allowed for selective use of killing people, which is bad for moral reasons and racists. "pregnant with discrimination" Punishment must not be degrading to human dignity; can't be random and trivial; can't be crazily disproportionate. killing people lowers respect for life and kills our values. Which is why we dont use public executions anymore. Process was too quick, didn't give criminals due process so it was cruel and unusual. Bias can affect it. |
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Gregg v Georgia
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They split up and slowed down georgia's process to make it more deliberated and not loosey goosey
but the sticklers decided that capital punishment is "inherently degrading" and that it would be unacceptable to people if they understood it fully. |
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Payne v Tennessee
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Does the 8th amendment consider victim impact, like impact of crimes on a victim's family?
YES it does and it's alllll good. |
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McCleskey v Kemp
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Can a study showing racism in the death penalty invalidate that state's death penalty law?
Capital guilt is an individual matter, and biases must be examined individually. Dissent: the risk that the sentence was affected by jury racism is intolerable, and we should scrutinize it. Studies inconclusive judges say |
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Atkins v Virginia
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Can we execute mentally retarded people?
No that's unconstitutional American standards of decency no longer accepts this punishment. It isn't retributive or deterring enough to support capital punishment. retardeds are morally incapacitated |
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Thomson v Oklahoma
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Murderer at 15, so he was a child.
Because of standards of decency in modern days it is abhorrent to execute someone under 16 |
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Van den haag
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Obviously for capital punishment lol van den haag
Legitimate element of our legal system that is legally and morally warranted Fifth amendment = capital punishment good, Eighth amendment doesn't change that Evolving standards are favoring cap punishment. Danger is that too few are executed Capital punishment does deter more than other punishments because people fear death more than anything else. Acts can be horrible enough to warrant cap punishment |
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Hugo Adam Bedau
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Thesis: people should choose the less severe punishment rather than the more severe unless there is good reason.
Bias and stuff makes innocent people be convicted. Cap punishment costs more because legal procedures Cap punishment seems to not act as a deterrence |
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OTher hugo adam bedau points
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Fifth amendment doesn't authorize death penalty. It says if there is a cap punishment it needs due process.
furman's reforms haven't eliminated prejudice. There is evidence. Prosecuters are racist Deterrence doesn't have empirical evidence highway analogy is inept |
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Griswold v Connecticut
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Planned Parenthood
Right to privacy. Marriage is a zone of privacy, like others created by other amendments in the constitution |
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Bowers v Hardwick
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Morality is the basis of law, so its not unconstitutional to have a law against sodomy.
Dissent = it's not about morals or sodomy, it's about the right to privacy and to be left alone |
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Lawrence v Texas
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Took both griswold and hardwick into account and found that the government didn't have a right to interfere.
some dissented and said that a majority belief about a sexual behaviour's immorality is in fact grounds for regulation but they were wrong so suck my dick george bush lol |
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Judith Thompson
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Privacy is just a notion that we derive from a bunch of other things, and so our constitution already covers it in a bunch of ways.
Marital spat-> passerby overhears = not invasion of privacy train amplifier on the house = invasion of privacy |
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Ruth Gavison
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Not a new idea, people understand why it is good.
Tresspass, breach of confidence, defamation Rights vs values |
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Devlin
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There should be a public morality.
Law is a proper implement of enforced morals. Sexual immorality aught to be controlled as exploitation of human weakness and law has been deemed the appropriate means of control in the past. Legislation is warranted when the reasonable man's tolerance is past. When the common omnibus in the community is disgusted. We don't tolerate EVERYTHING. Homosexuality is punishable because it causes harm, even in private, like treason. it eats away at the moral fabric of society! |
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HLA Hart
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Devlin is wrong, and his ideas bring about unacceptable conclusions.
Devlin thinks that morality is the glue that holds society together, so private morality weakens the glue. There is no historical support for the claim that private immorality leading to social disintegration. No support for seamless web of morality claim. The view that enforcing morality is good in and of itself is even less defensible. gay sex is more like voting that treason |
