JURISPRUDENCE CASES AND MATERIALS: An Introduction to the Philosophy of Law and Its Applications

Transcription

1 JURISPRUDENCE CASES AND MATERIALS: An Introduction to the Philosophy of Law and Its Applications

2 LexisNexis Law School Publishing Advisory Board Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 JURISPRUDENCE CASES AND MATERIALS An Introduction to the Philosophy of Law and Its Applications Third Edition STEPHEN E. GOTTLIEB Professor of Law Albany Law School BRIAN H. BIX Frederick W. Thomas Professor of Law and Philosophy University of Minnesota TIMOTHY D. LYTTON Albert & Angela Farone Distinguished Professor of Law Albany Law School ROBIN L. WEST Professor of Law Georgetown University Law Center

4 ISBN: Ebook ISBN: Looseleaf ISBN: Library of Congress Cataloging-in-Publication Data Jurisprudence cases and materials : an introduction to the philosophy of law and its applications / Stephen E. Gottlieb, Professor of Law, Albany Law School, Brian H. Bix, Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota Timothy D. Lytton, Professor of Law, Albany Law School, Robin L. West, Professor of Law, Georgetown University Law Center. Third edition. pages cm Includes index. ISBN (hardbound) 1. Jurisprudence United States Cases. 2. Law United States Cases. I. Gottlieb, Stephen E. II. Bix, Brian III. Lytton, Timothy D., IV. West, Robin, KF379.G dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.3071)

5 Acknowledgments Steve Gottlieb would like to acknowledge the research assistance of Deborah Buchanan. Timothy Lytton would like to thank Rachel Anisfeld, Pamela Barmash, Beth Berkowitz, Peter Berkowitz, Charles Donahue, and Natalie Dohrmann for helpful comments on Part I of the text, as well as Alexandra Harrington and Kelly Egan for essential research assistance. Robin West would like to acknowledge the assistance of Lisa Jabaily, Laura Alexander, and Scott Meisler. iii

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7 Part I THE ORIGINS OF LAW AND JURISPRUDENCE INTRODUCTION Chapter 1 THE ORIGINS OF LAW IN THE ANCIENT NEAR EAST A. MESOPOTAMIAN LAW COLLECTIONS Time Line of Ancient Near Eastern History from 9000 B.C.E. to 1750 B.C.E Historical Introduction Introductory Exercise Laws of Ur-Namma (LU) Laws of Lipit-Ishtar (LL) Laws of Hammurabi (LH) Inscription of Yahdun-Lim (IY) Study Questions B. THE HEBREW BIBLE Historical Introduction The Ten Commandments and the Book of the Covenant: Exodus Study Questions Chapter 2 THE BIRTH OF JURISPRUDENCE IN THE ANCIENT WORLD A. GREEK Time Line of Greek History from 1700 B.C.E. to 323 B.C.E Historical Introduction The Trial of Socrates Apology Study Questions Euthyphro Study Questions Crito Study Questions Aristotle s Nicomachean Ethics, Book V and Politics, Book V Nicomachean Ethics, Book V Politics, Book V Study Questions B. ROMAN v

8 Time Line of Roman History from 753 B.C.E. to 1453 C.E Historical Introduction Cicero s on the Commonwealth, Book III and on the Laws, Books I & II Cicero, on the Commonwealth, Book III Cicero, on the Laws, Book I Cicero, on the Laws, Book II Study Questions Justinian s Institutes Introductory Exercise Institutes 3:13, 14, 15, 21, Study Questions C. RABBINIC Time Line of Israelite and Rabbinic History from 1200S B.C.E. to 600 C.E Historical Introduction Commentary on the Covenant at Sinai Babylonian Talmud, Shabbat 88a Study Questions The Law of the Stubborn and Rebellious Son The Biblical Law of the Stubborn and Rebellious Son: Deuteronomy 21: Elaboration of the Law of the Stubborn and Rebellious Son: Mishnah Sanhedrin 8: Commentary on the Law of the Stubborn and Rebellious Son: Babylonian Talmud, Sanhedrin 71A Study Questions The Oven of Achnai Babylonian Talmud, Bava Metsia 59A 59B Study Questions PART II ANALYTICAL LEGAL PHILOSOPHY INTRODUCTION Chapter 3 QUESTIONS OF APPROACH A. OVERVIEW OF METHODOLOGICAL QUESTIONS B. H.L.A. HART H.L.A. Hart, Persistent Questions Questions for Discussion C. CONCEPTUAL ANALYSIS Brian Bix, Conceptual Questions and Jurisprudence vi

9 D. BRIAN LEITER D. Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence Questions for Discussion Suggested Further Readings Chapter 4 LEGAL POSITIVISM A. AN OVERVIEW OF LEGAL POSITIVISM B. H.L.A. HART H.L.A. Hart, Positivism and the Separation of Law and Morals Questions for Discussion C. THE DETAILS OF HART S THEORY D. NOTE ON INCLUSIVE AND EXCLUSIVE LEGAL POSITIVISM E. SCOTT SHAPIRO S PLANNING THEORY Scott J. Shapiro, Summary Questions for Discussion F. HANS KELSEN Hans Kelsen, What Is the Pure Theory of Law? Questions for Discussion G. NOTE ON KELSEN H. NOTE ON HART AND KELSEN Suggested Further Readings Chapter 5 CRITICS OF LEGAL POSITIVISM A. OVERVIEW B. NATURAL LAW THEORY C. ST. THOMAS AQUINAS ST. THOMAS AQUINAS, SUMMA THEOLOGIAE Questions for Discussion D. JOHN FINNIS John Finnis, On the Incoherence of Legal Positivism Questions for Discussion E. LON L. FULLER Lon L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart Questions for Discussion F. NOTE ON FULLER S THEORY, AND ITS CRITICS G. NOTE: FULLER AND THE LEGAL PROCESS SCHOOL H. RONALD DWORKIN Ronald Dworkin, Legal Theory and the Problem of Sense Questions for Discussion vii

10 I. NOTE: DWORKIN AND HIS CRITICS Suggested Further Readings Chapter 6 JUSTICE A. OVERVIEW B. JOHN RAWLS AND SOCIAL CONTRACT THEORY C. JOHN RAWLS AND DISTRIBUTIVE JUSTICE John Rawls, Distributive Justice: Some Addenda Questions for Discussion D. JEREMY WALDRON Jeremy Waldron, The Plight of the Poor in the Midst of Plenty Questions for Discussion E. SUSAN MOLLER OKIN Susan Moller Okin, Justice and Gender: An Unfinished Debate Questions for Discussion F. OTHER APPROACHES TO JUSTICE Suggested Further Readings Chapter 7 THE NATURE AND SIGNIFICANCE OF RIGHTS A. NOTE ON RIGHTS B. JOEL FEINBERG Joel Feinberg, The Nature and Value of Rights Questions for Discussion C. N.E. SIMMONDS N.E. Simmonds, The Will and Interest Theories Suggested Further Readings PART III CRITICAL JURISPRUDENCE INTRODUCTION Chapter 8 LEGALISM A. LEGALISM AS A PROFESSIONAL IDEOLOGY JUDITH SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS PAUL KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP Questions on Shklar and Kahn B. LEGALISM AND OBJECTIVITY Owen Fiss, Objectivity and Interpretation Paul D. Carrington, Of Law and River viii

11 Questions on Fiss and Carrington C. LEGALISM AS TRADITIONALISM Anthony Kronman, Precedent and Tradition Comments and Questions on Kronman Thomas Paine, Rights of Man: Part Two Justice Oliver Wendell Holmes, Path of the Law Comments and Questions on Kronman D. LEGALISM AS FORMALISM ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION Comments on Langdellian Formalism, and an Introduction to Legal Realism E. LEGALISM AS LIBERALISM JOHN RAWLS, A THEORY OF JUSTICE Question on Rawls Chapter 9 CRITICAL JURISPRUDENCE: AN OVERVIEW OF THE MOVEMENTS A. THE LEGAL REALIST MOVEMENT Justice Oliver Wendell Holmes, Path of the Law JUSTICE OLIVER WENDELL HOLMES, THE COMMON LAW Lochner v. New York Karl Llewellyn, Some Realism About Realism Notes and Comments on Legal Realism LON FULLER, THE LAW IN QUEST OF ITSELF ROSCOE POUND, JUSTICE ACCORDING TO LAW Notes and Comments on Legal Realism B. THE CRITICAL LEGAL STUDIES MOVEMENT Roberto Unger, The CLS Movement Duncan Kennedy, Legal Training as Training for Hierarchy Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law Questions and Comments on Critical Legal Studies C. IDENTITY-BASED CRITIQUES Some Historical Examples State v. Mann ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS Bradley v. State Bradwell v. Illinois Suggestions for Further Reading ix

12 2. Critical Race Theory Mari Matsuda, Looking to the Bottom Charles Lawrence III, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism Questions on Critical Race Theory Feminist Legal Theory Wendy W. Williams, Notes from a First Generation Christine A. Littleton, Reconstructing Sexual Equality CATHERINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW Questions and Comments on Feminist Legal Theory D. QUEER THEORY Janet E. Halley, Sexuality Harassment Marc Spindelman, Discriminating Pleasures Questions and Comments on Queer Theory E. INTERDISCIPLINARITY: THE STUDY OF LAW AND LEGALISM Cass R. Sunstein, On Analogical Reasoning Notes on Analogic Reasoning Law and Humanities ROBERT FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE Questions on Law and Humanities Law and Literature James Boyd White, Law and Literature: No Manifesto Robin L. West, The Literary Lawyer Questions and Comments on Law and Literature Law and Interpretation Ronald Dworkin, Law as Interpretation Owen Fiss, Objectivity and Interpretation Stanley Fish, Fish v. Fiss Steven Knapp and Walter Benn Michaels, Against Theory Robert Cover, The Violence and the Word Questions on Law and Interpretation Law and Economics a. Normative Law and Economics Richard A. Posner, The Ethical and Political Basis of the Effıciency Norm in Common Law Adjudication Questions and Comments on the Economic Analysis of Justice b. Descriptive Law and Economics Justice O.W. Holmes, Path of the Law, x

13 Learned Hand, United States v. Carroll Towing Co Questions and Comments on the Historical Project c. The Coase Theorem MITCHELL A. POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS Questions Regarding the Coase Theorem Notes and Comments on Other Disciplines Naomi Mezey, Law as Culture Further Readings Chapter 10 CRITICAL JURISPRUDENCE: A CONCEPTUAL APPROACH A. LIBERAL LEGAL SKEPTICISM The Rights Critique Morton J. Horwitz, Rights Mark Tushnet, An Essay on Rights, Questions on the Rights Critique Critiques of Formal Equality Catharine A. MacKinnon, Sex Equality: On Difference and Dominance, Eva Feder Kittay, Taking Dependency Seriously: The Family and Medical Leave Act Considered in Light of the Social Organization of Dependency Work and Gender Equality Questions on Formal Equality The Autonomy Critique Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State Morris Cohen, Property and Sovereignty The Privacy Critique Robin West, Lifting the Veil of the Right to Be Let Alone Questions and Comments on Autonomy and Privacy B. CRITICAL THEORY Hegemony and Legitimation Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law False Necessity Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law Questions on Critical Theory C. POSTMODERNISM: INDETERMINACY AND INTERSECTIONALITY xi

14 1. The Indeterminacy Thesis MICHEL FOUCAULT, THE ORDER OF THINGS, AND ARCHEOLOGY OF HUMAN SCIENCES, INTRO., MARK V. TUSHNET, RED, WHITE AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW Intersectionality, Anti-Essentialism and Perspectivial Theories of Knowledge Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color Questions on Indeterminacy and Intersectionality Owen Fiss, The Death of the Law Questions on Indeterminacy and Intersectionality D. PRAGMATISM AND UTILITARIANISM Robin West, The Other Utilitarians Richard A. Posner, Pragmatic Adjudication Questions on Pragmatism and Utilitarianism PART IV JURISPRUDENCE IN BLACK ROBES INTRODUCTION Chapter 11 IS MEANING FOUND OR IMPUTED? A. CONSENT AND COERCION, WELCOME, AND DISAGREEABLE Meritor Savings Bank, FSB v. Vinson Notes B. PRIVATE INTENT Michelle Marvin v. Lee Marvin Notes Akers v. Baldwin Notes C. LAWGIVERS INTENT Alden v. Maine Notes Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes Notes xii

15 Chapter 12 MORAL ASSUMPTIONS IN LAW A. IMPLICIT IN CURRENT LAW? Kurowski v. Krajewski Notes B. IMPLICIT IN THE CLAIM TO OBEDIENCE? Bell v. Maryland Notes Trial of the Major War Criminals Before the International Military Tribunal Trial of the Major War Criminals Before the International Military Tribunal Notes C. IMPLICIT POSITION ON CONSEQUENCES? Herrera v. Collins Notes Chapter 13 WHAT MORAL CLAIMS COUNT? A. OUR SIBLINGS KEEPERS? National Federation of Independent Business v. Sebelius Notes and Questions B. SLAVERY, FREEDOM, AND PHYSICAL SECURITY? The Antelope. The Vice-Consuls of Spain and Portugal, Libellants Notes and Questions Kircher v. City of Jamestown Notes C. THE LIBERAL PARADIGM Freedom Unless Others Are Hurt? Lawrence v. Texas Notes What Counts as an Injury? Valley Forge Christian College v. Americans United for Separation of Church and State, Inc Notes D. DEMOCRACY? San Antonio Independent School District v. Rodriguez Notes E. DISTRIBUTIVE JUSTICE vs. SELF-REGARDING RIGHTS Property? Seawall Associates v. City of New York Notes Freedom and Community xiii

16 Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property Notes and Questions Neutral, Universal or Defensible Rules and Outcomes, and the Treatment of Gender De La Cruz v. Tormey Notes State Action and Remedies for Inequality and Subordination City of Richmond v. J.A. Croson Co Notes Grutter v. Bollinger Notes F. HOW FAR DO MORAL CLAIMS REACH? McCain v. Koch Notes INDEX I-1 xiv