Philosophy Of Law Final Exam

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1. What is John Stuart Mill's harm principle in On Liberty, and what ambiguities are associated with it? Explain three other justifications for a state interfering with individual liberty based on paternalism, moralism, and offense.

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Harm Principle: The only reason to restrict liberty is prevent harm to others

Ambiguities: Self-harm (and its effect on others), consent to harm, harm vs. offense (vague definitions)

Other Principles of Justification:

- Paternalism: Preventing harm to self

- Moralism: Preventing a moral evil

- Offense: Preventing offense to others

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2. What are the main contrasting arguments in the Kennedy Hospital case? What type of decision-making is used by the court? Do you agree with the court's decision or not? Why? (Aaron)

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Majority:

- No Constitutional right to die, State is allowed to pursue charges, state can prevent suicide so it can prevent this (positivism)

- Religious beliefs are protected, but actions in pursuit of those beliefs may not be (positivism)
- Hippocratic oath (natural law)

Minority:

- Moral right to die for your beliefs (natural law)

- Purpose of law is to protect the individual's rights, not their life specifically (natural law)

- Unintended consequences

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3. What are two types of arguments against paternalism given by Gerald Dworkin? When does Dworkin believe paternalism is justified? Do you agree or not? Why?

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Two arguments against paternalism:

- Utilitarian: Interfering with someone's liberty does not as a matter of fact guarantee

- Autonomy: It is more to important to respect people's autonomy than to protect them

Paternalism is justified when the harm is:

- Irreversible

- Under extreme stress

- Without full information

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4. Why does free speech protect "acts of expression" rather than just "speech"? What are some of the negative effects of not protecting speech strongly? How problematic are they?

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Speech is just a form of expression, we're not trying to protect the speech but what is being said

Negative effects of not protecting speech:

- May suppress truth

- May limit creativity + expression (the "chilling effect")

- Slippery slope argument

- Gives more power to government over the individual

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5. What are the most common Mill-type "search for the truth" defenses of free speech? What are two other consequentialist arguments in favor of defending maximal free speech? Are they persuasive? Why?

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Search for the Truth:

- A silenced opinion may be true

- A silenced opinion may contain part of the truth

- If a received opinion is not contested it becomes a prejudice

- If opinions are not tested, "truth" becomes meaningless

Other Arguments:

- Limits the power of government over the individual

- Allows for individual and societal growth

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6. What types of speech are not protected under our First Amendment rights? (See essay by Feinberg and class discussion.) Why can't these be protected.

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Unprotected Speech:

- Obscenity

- Fighting words

- Defamation/Slander

- Libel

- Treason/Sedition

- Shouting "fire" in a crowded theater

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7. Describe the issue and main arguments in Cohen v. California. Why is the case important? Can you categorize the theory of law exemplified in the decision? Explain. (Tom)

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Issue: Does freedom of speech extend to written words?

Majority:

- Was not targeted at an individual and did not inflict face-to-face personal insult, therefore protected under 1st amendment (positivism)

- California law violated 1st and 14th amendments (positivism)

-Slippery slope of restricting freedom of expression

Minority:

- Wearing jacket in courthouse was more conduct than speech, therefore not protected (legal realism)

Important because it distinguished written words as protected speech

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8. Differentiate legitimate and illegitimate justifications for restricting freedom of expression. Why are these sometimes intertwined in problematic ways? Explain your view with examples.

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Legitimate justifications:

- Time

- Place

- Manner

Illegitimate justifications:

- Content

Intertwined:

- Could claim to restrict because of manner, but in reality be restricting because of content

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9. According to Kim Lane Scheppele in her essay, "The Reasonable Woman," how does the law need to adapt to cases like State v. Rusk? Are you persuaded by Scheppele's arguments? Explain. (Emma and class)

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- Less inspection of the victim

- Need to take into account a "reasonable woman's" perspective

- What is "reasonable?"

- How many perspective do you take into account?

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10. What two main issues make rape cases like State v. Rusk problematic? Why? What is the main argument on each side of the case and what type of argument is it? Do you agree with the final decision? Why or why not? (Emma)

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Problematic issues:

- Consent: What perspective should be used for determining consent?

- Resistance: Did Pat resist using enough force?

- Hearsay (he-said-she-said)

Majority:

- Precedent established that lack of consent is established through resistance or failure to resist due to fear. Majority feels that Pat had a real fear keeping her from resisting. (Positivism)

Minority:

- Failure to flee, scream, or resist at any point (Positivism)

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11. Causation and forseeability and negligence play major roles in the Palsgraf v. Long Island Railroad Co. case. What do you believe are the major arguments on each side? What was the outcome of the case? Do you agree with the decision or not? Explain why. (Mark)

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Majority:

- Negligence is the absence of care, there was no absence of care (Natural Law/Legal Realism)

- Palsgrav was not wronged because the employee could not know the consequences of helping the man could or would result in her being injured (Natural Law)

Minority:

- Intent doesn't matter, only that harm was caused

- There is a causal chain of events

Outcome: Damages overturned

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12. What are the main arguments on intent and good samaritan laws in People v. Young? What kind of legal reasoning does it exemplify? Do you agree with the outcome? Why or why not? (Katie)

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Court decision: Guilty

Intent:

- Intent was not to attack the undercover officers but to stop the person from being beaten (Natural Law)

- The crime he was charged with did not require intent (Positivism)

Good Samaritan:

- Don't want to discourage people from helping (Legal Realism)

- Don't want to give people an excuse to jump into violence (Legal Realism)

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13. Compare and contrast required and possible conditions on moral responsibility and legal liability. The moral and legal views are clearly different. Do you agree with the similarities and differences?

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Legal Responsibility:

- Agent performed the act

- Causal connection between agent and harm

- Agent must have intent + capacity to understand the law, deliberate + control conduct

Moral Responsibility:

- Agent performed the act

- Agent could have done otherwise

- The consequences were harmful or harm was done

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14. Describe two historical views of the insanity defense. Then present the opinion in State v. Guido. Explain the court's decision and the reasoning used, and whether or not you endorse the court's view. (Alex)

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M’Naghten Rules:

- Based on the M’Naghten Case 1843 England

- Daniel M’Naghten charged for murdering secretary of British Prime Minster

- States that: A defendant may be found not guilty by reason of insanity if "at the time of committing the act, he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong."

Model Standard (American Law Institute):

- States that: A defendant is not held criminally responsible "if at the time of his conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law."

- Considered less restrictive then M'Naghten Rules

Decision:

- Adele Guido's conviction overturned

- We do not punish those who are not knowledgable when committing a crime (Natural Law)

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15. What has been the strongest moral argument given in favor of the insanity defense? What is problematic about the defense? Should the insanity defense be abolished? Explain the legal theories that are relevant and which side of arguments persuades you and why.

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Strongest Argument in Favor:

- Unjust to hold the insane to the same standards as the sane (natural law)

Problems:

- Defense could be abused

- Expert psychologist witnesses paid to testify

- No clear definition of "disease of mind," what qualifies as insane? (legal realism)

- We don't know a lot about the mind

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16. What was the Supreme Court’s holding in Furman v. Georgia? What two themes dominated the reasoning? Do you agree with the decision or not? Why? (Zach)

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Court deemed death penalty unconstitutional

Majority:

- Death penalty is arbitrary, capricious + discriminatory (natural law/legal realism)

- Violates 8th and 14 amendments (positivism)

Minority:

- Does not violate 8th or 14th amendments (positivism)

- Death penalty serves as a deterrent

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17. Contrast the holding and reasoning in the Gregg v Georgia. case? What is your view on capital punishment? Explain. (Jackson)

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Court deemed death penalty constitutional again

Majority:

Georgia rewrote its capital punishment statute to include aggravating and mitigating factors, making it more fair and less discriminatory and arbitrary, and thus it does not violate the 14th or 8th amendment

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18. Compare and contrast the utilitarian and retributive justifications of punishment – the main features. What are two major strengths and two major difficulties with each? Do you prefer one over the other? Explain why.

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Utilitarian:

- Punishment is justified just in case it provides more social benefits (deterrence, incapacitation, social outlet for justice)

- Major Strengths: Forward-looking, assumes free will, avoids suffering

- Major Flaws: Allows punishment of an innocent for the good of society, does not guarantee proportionality

Retributive:

- Punishment is justified if it is proportional to the crime + deserved

- Major Strengths: Avoids injustice, doesn't allow punishing innocents, assumes free will

- Major Flaws: No consideration for what's best for society, vengeful, "deserved" and "proportional" are vague terms

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19. What are the main issues in Grutter v. Bollinger? What are two main arguments on each side of the case? Are there any legal theories represented in the arguments? Do you agree with the decision? Why or why not? (Luke)

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Issues:

- What level of affirmative action is justified?

- Is a previous case binding precedent? (positivism)

Majority Arguments:

- School has an interest in ensuring diversity (legal realism)

- Affirmative Action is necessary to fight entrenched inequality (natural law)

- Bakke precedent (positivism)

- If society was already equal, AA would not be necessary, but that is not the reality

Minority Arguments:

- Violates 14th amendment (positivism)

- "Critical mass" policy looks like a quota system

- The conditions of society should not effect the legality of a policy

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20. Describe three different uses of the term “affirmative action”? Why is it important to keep track of the differences? Do you find one most acceptable? Explain why.

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Strong Preference: Putting minority over merit (quota system)

Weak Preference: Putting merit first, but letting minority have an effect

Equalizing Opportunity: Public ads to increase awareness of opportunities, training programs to help minorities become more qualified

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21. Using examples of legal cases that we have studied this semester, explain which theory or theories of law you think judges DO use most often, and those that you believe they SHOULD use most often. Be sure to consider Natural law theory, Positivism, Legal Realism, Fuller’s view, Dworkin;s view, John Hart Ely’s view, and originalism in either of its 2 forms, Scalia’s view, etc.

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