PHL 347 Philosophy of Law

Spring, 2020

Dr. Dennis Weiss

HUM 154; EXT: 1513

Office Hours: MWF 12:00 - 1:00,

T 1:30 - 3:30

dweiss@ycp.edu

COURSE POLICIES

You'll find on this page all the preparatory work that needs to be completed prior to coming to class in order to be ready for our class discussions.

 

This assignments listed here are subject to change. Please bookmark this page and return to it prior to completing the work for the next class. I regularly revise and update the syllabus and course assignments based on our progress in class and whatever relevant material arises in the media. I don't recommend printing this page but you should return to it regularly and regularly refresh your browser to ensure you are viewing the most up-to-date page. Some course material may be found on our Course Moodle Site

PART ONE: FREE SPEECH, HATE SPEECH, AND THE FIRST AMENDMENT

In this first part of the course, we'll be focusing on a series of connected issues that have to do with free speech, hate speech, and the First Amendment. This topic has been featured so heavily in many current events, including:

 

  • The case of a Google engineer who was fired for writing an essay in which he argued that women were naturally not suited to engineering;

  • The case of Colin Kaepernick and other athletes who “take a knee;”

  • The controversy of the ACLU defending neo-Nazis in the context of the Charlottesville incident;

  • Debates over free speech and hate speech on college campuses, especially at The University of Californian, Berkeley;

  • Controversies over hate speech on the Internet;

  • President Trump’s attacks on the press and the principle of free speech;

  • The recent Supreme Court case on Masterpiece Cakeshop.

There are several good resources on the First Amendment you may find worthwhile:

I've also posted to our Moodle site links to a number of worthwhile podcasts addressing free speech and hate speech issues. You may find it helpful to listen to some of these podcasts.

WEDS/JAN 22

Read: Documents on free speech and hate speech

As this is our first day of class, there is no writing assignment due today. You should be prepared to discuss some of the issues addressed in our first readings about free speech and hate speech.

FRI/JAN 24

Read:​​

As you read these essays by Chemerinsky and Post, try to identify the claims they are arguing for and the elements of their arguments. A careful reader will annotate and take notes while reading and begin to rehearse ideas in his or her head. If you're interested, UC Berkeley has an extensive website devoted to free speech

Micro Essay: Write a brief essay in which you address the question: who do you find more persuasive, Chemerinsky or Post, and why? Remember, your micro essay should be composed on a 4 x 6 index card and should be completed prior to the start of class.

MON/JAN 27

Read:

Listen: American Hate & the Law: Discourse Disrupters

These two documents come from the Exploring Constitutional Law website, an excellent source of information on key constitutional issues. We'll be using it heavily in this first portion of the course. You are, of course, free to explore the many links included in these two documents, but you are only required to read the two linked documents. The IQ2 podcast is an excellent podcast. This discussion addresses the issue how the American legal system should cope with a new era of hate speech. In this episode, host John Donvan sits down two top legal minds thinking about free speech today. Join former ACLU president Nadine Strossen and New York University professor Thane Rosenbaum for an in-depth discussion on the future and limits of free speech in America. Strossen has written a letter to readers summarizing the key themes of her book HATE.

Micro Essay: ​Let's see if we can reconstruct the basic arguments of Strossen and Rosenbaum. What is their core position in regard to the matter of free speech and hate speech and can you identify two or three reasons each cites in support of their position?

WEDS/JAN 29

Read: John Stuart Mill, On Liberty. Read pages 1 - 11. HERE are some notes on the Mill reading.

You might be interested in reading Chapter V, on applications, but the reading is not required. There is a Mill selection included in Culver: Readings in the Philosophy of Law, pages 329 - 342, but I prefer the different edited version I linked to. Mill continues to be one of the most influential dead philosophers around. David Brooks discussed Mill in a recent op-ed and he continues to be a "must-read" for students interested in liberty and free speech issues. Culver includes an introduction to the reading on pages 321 - 323 which is not required, but may be helpful. If you're interested in more information about Mill, click here.

Micro Essay: Imagine that Mill had read Laura Beth Nielsen's op-ed "The Case for Restricting Hate Speech" and he decided to post a comment on it in the newspaper's comment section. What do you think he would write in his comment? How do you think he would respond to her op-ed?

FRI/JAN 31

Read: Joel Feinberg, Hard Cases for the Harm Principle

Joel Feinberg was a political and social philosopher who did groundbreaking work in the fields of individual rights and the authority of the state. His major work was ''The Moral Limits of the Criminal Law'' (Oxford University Press), which was published in four volumes. His approach in that work was explained by Jody S. Kraus, a former student of Professor Feinberg's and a professor of both law and philosophy at the University of Virginia Law School: "Following John Stuart Mill, Feinberg believed that political philosophy begins with a normative presumption in favor of individual liberty. The task of justifying political coercion, then, consists in identifying so-called liberty-limiting principles, which set out the conditions under which that presumption is overridden and the state is justified in exercising coercion. Each volume of 'Moral Limits' is devoted to an extensive analysis of one of four such principles that might justify the imposition of criminal sanctions.'' In each volume -- ''Harm to Others'' (1984), ''Offense to Others'' (1985), ''Harm to Self''' (1986) and ''Harmless Wrongdoing'' (1988) -- Professor Feinberg found the state's justification for setting limits on freedom ''less and less persuasive,'' Professor Kraus said. (From the NYTimes)

Micro Essay: Building on Mill's analysis of the harm principle, Feinberg considers whether we need any additional liberty limiting principles. In each of the four sections of his essay, he examines a different principle. You'll be assigned to read one section of the essay and then asked to address the following micro essay: how would you define the principle Feinberg examines in your section? Does Feinberg think we need such a principle? Why or why not?

MON/FEB 3

Read:

Micro Essay: Do you think the United States has an interest in preserving the flag as a symbol of nationhood and national unity? Does that interest imply we should prohibit an individual from desecrating it?

WEDS/FEB 5

Read:

If you're interested in an interesting account of the Flynt versus Falwell trials, with lots of supporting documents, check out The Jerry Falwell v Larry Flynt Trial: An Account, by Douglas Linder. The podcast Unprecedented did an episode on Falwell and Flynt, which you can listen to HERE.

Micro Essay: We have been discussing the status of hate speech and the claim, made by some, that hate speech necessitates a rethinking of the First Amendment. Given Rehnquist's reasoning in Hustler and Flynt v. Falwell, what, if any, do you think the implications are for hate speech and the First Amendment?

FRI/FEB 7

Read: Frank COLLIN and the National Socialist Party of America, Plaintiffs‑Appellees, v. Village of Skokie, Illinois, a Municipal Corporation, Defendants‑Appellants.

Micro Essay: Our reading for Collin v. Skokie doesn't include a dissenting opinion, but let's see if we can brainstorm a bit and hypothesize a foundation for such a dissent. Imagine you're a dissenting justice and you want to fashion a foundation for the claim that the First Amendment doesn't protect the activity in which Collin wishes to engage. Can you come up with an argument that might support such a claim?

MON/FEB 10

Read: Mari Matsuda, "Public Response to Racist Speech" (NOTE that you only need to read selected pages from this article, as indicated in the document.)

Micro Essay: Can you describe the key elements of Matsuda's response to racist speech?

We might think about Matsuda's response to Skokie and whether we find her respond to racist speech more generally persuasive. As we look ahead to R.A.V. on Wednesday, we might consider how she would evaluate Scalia's argument. You might also be interested in Hate Speech: What Price Tolerance?, in which Matsuda engages in a dialogue with Nadine Strossen and Gary Gilden.

WEDS/FEB 12

If you are a fan of podcasts (one of my favorites is More Perfect--all about the law) then you might be interested in listening to Heightened Scrutiny's podcast on R.A.V. It's worthwhile and ends with a good summary of the issues we have been addressing. 

Read: R. A. V., PETITIONER v. CITY OF ST. PAUL, MINNESOTA

Micro Essay: One way to understand the issue behind this case is as follows: whether a city ought to be able to prohibit fighting words that contain messages of bias-motivated hatred. In his majority opinion, Scalia argues that a city cannot prohibit such speech. Do you find his argument persuasive? Why or why not?

The podcast Unprecedented did a terrific episode on a second cross burning case, Virginia v. Black, which you can listen to HERE

FRI/FEB 14

For information on Steven Heyman, check out his faculty webpage. If you click on SSRN Author Page, that will take you to some of his writings available online. You can also access additional writings of his HERE. Heyman defends a liberal humanist view of free speech that emphasizes the positive values promoted by free speech, fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. Today's reading is chapter 10 from Heyman's Free Speech and Human Dignity. While it is just one chapter and makes reference to previous chapters, his argument is relatively self-contained and can be discerned in these pages.

Read: Steven J. Heyman, Hate Speech

Micro Essay: Heyman's conclusion to his argument in this chapter is that public hate speech is not deserving of constitutional protection. Can you concisely (and yet accurately) reconstruct his argument in support of this claim?

MON/FEB 17

I've put together some information on Obscenity Law that you might find helpful. If you're interested, read Obscenity Law. I've also put together a document on feminism and pornography. You can access it HERE

Read: 

Micro Essay: After reviewing the material collected by Frontline on "If you were the juror..." (including "If you were the juror..." AND "highlights from the defense and prosecution") compose a brief essay in which you vote on this obscenity trial and support your vote with a rationale.

You might take some time to familiarize yourself more with some of the issues surrounding the obscenity debate. In 2002, Frontline, the PBS documentary unit, broadcast an episode on American Porn. It's website has some worthwhile information. You can find it HERE. The Stanford Encyclopedia of Philosophy has an article on Pornography and Censorship addressing the core issue whether a government can legitimately prohibit citizens from publishing or viewing pornography, or would this be an unjustified violation of basic freedoms?

WEDS/FEB 19

Read: Reno v. ACLU

Micro Essay: Let's once again practice the skill of reconstructing arguments. Reconstruct Stevens' majority opinion in Reno v. ACLU.  Identify the issue ("whether....), a precise formulation of Stevens' conclusion, and identify the core premises, stating them concisely and placing them in a logical order.

FRI/FEB 21

If you're interested in Catherine MacKinnon's background, read her faculty biography HERE. She recently published an op-ed in The New York Times on sexual harassment and the #MeToo movement. Read it HERE. You can watch a video of MacKinnon discussing her book Only Words with Charlie Rose HERE

Read: Catherine MacKinnon, Only Words, selection

Micro Essay: Let's imagine that MacKinnon has to write our first writing assignment. Briefly and accurately, on the basis of your reading of this selection from Only Words, how do you think she would address our issue, "whether we need to rethink the First Amendment and freedom of speech"?

MON/FEB 24

Read:

Micro Essay: Do you agree that the remedy for hate speech is more speech?

As you work on your micro essay, you might think about how Catherine MacKinnon would respond to the claim that the remedy for hate speech is more speech. What would be her analysis of this claim?

WEDS/FEB 26

Laura Beth Nielsen is a Research Professor at the American Bar Foundation as well as a Professor of Sociology and Director of the Center for Legal Studies at Northwestern University. She is a sociologist and lawyer with degrees from the University of California, Berkeley. For more, see her Faculty Biography. We've previously read and discussed Nielsen's op-ed "The Case for Restricting Hate Speech."

Read: Laura Beth Nielsen, Power in Public: Reactions, Responses, and Resistance to Offensive Public Speech {Note: I've edited this essay considerably to keep it shorter. If you are interested in reading the unedited version, you can access it HERE.}

Micro Essay: Erwin Chemerinsky and Franklyn Haiman have claimed that the response to hate speech should not be censorship but ought to be more speech. Based on your reading of this essay by Nielsen, how would she reply?

You might also be interested in Greg Lukianoff and Jonathan Haidt, "The Coddling of the American Mind": "In the name of emotional well-being, college students are increasingly demanding protection from words and ideas they don’t like. Here’s why that’s disastrous for education—and mental health."

FRI/FEB 28

Writing Assignment One

Today we are going to engage in a peer review process. You should bring a hard copy of your first writing assignment to class. There is no micro essay for today. You will be asked to submit your draft and your peer evaluation with your final draft. Failure to participate in the peer review process will result in a 10 point grade penalty. Recall that I have prepared a couple of documents to help you with the writing process: Grading Rubric and  Philosophy Writing Resources.

PART TWO: WHAT IS THE LAW? THE NATURE OF LAW

In this part of the course, we will examine five sets of ideas, each offering an independent answer to the question "What is law?"

Natural Law Theory

MON/MAR 9 Your first writing assignment is due today.

We'll begin this unit of the course with a famous thought experiment raising complex issues about the nature of law.

Read: Getting Away with Murder

Micro Essay: The core issue before you and the justices of the court: whether you believe the four defendants ought to be found guilty of murder or whether you think their action was in some sense justified or ought to be excused. What are the grounds for your thinking the way you do? Write a micro essay in which you decide this case and provide justification for your decision.

Interested in real life cases analogous to the case of the speluncean explorers? Check out the cases of Holmes and Dudley.

WEDS/MAR 11

Today we will examine Thomas Aquinas' version of natural law theory. Aquinas touches on a number of grand themes that it is worth thinking and writing about: the origin of law, the relationship of human life to something that (in some sense) transcends it, the implications of the natural law, the status of unjust laws. Aquinas' writing style is unusual by today's standards (to say the least). He poses a questions, considers objections, and then poses an answer and replies to the objections. For our purposes, after each "article" or question, pay attention to each section that begins, "I answer that...". That's where he makes his most substantive points.

Read:

  • St. Thomas Aquinas, "Treatise on Law" (Culver, pages 27 - 41)

  • Optional but recommended: Culver's Introduction to Natural Law Theory, pages 21 - 27

You may also find helpful:​

Micro Essay:​ How do you think  a proponent of Natural Law Theory would address the case of the speluncean explorers?

 

For additional information on natural law theory: If you would like a more developed and contemporary account of natural law, you might read John Finnis, Natural Law: The Classical Tradition and Brian Bix: "Natural Law Theory.", and John Finnis.Morality, and Sexual Orientation. For more information on Aquinas, see Susan Dimock: The Natural Law Theory of St. Thomas Aquinas. Natural law theory has been an important backdrop of a number of key ideas, including Martin Luther King's Letter From a Birmingham Jail and Larry Arnhart's Darwinian Natural Right.

FRI/MAR 13

Today is a general education workshop day and we won't have class today and the assigned reading is optional and you don't have to complete a micro essay. If you're interested in reading more about how a natural law theorist might analyze a legal issue involving sexual ethics, see the article from Finnis. 

Today we will examine a controversy from the perspective of natural law theory. John Finnis is a proponent of natural law theory, which he uses in this reading selection to analyze sexual ethics.

Read: Is Homosexual Conduct Wrong? A Philosophical Exchange

Micro Essay: Let's see if we can reconstruct Finnis' argument. What do you think his conclusion is? What are the premises (the evidence presented in the form of claims) that supports Finnis' conclusion (the thesis of his essay)?

For additional information on John Finnis, see selections from his Natural Law and Natural Rights (Culver, pages 46 - 74). You might also be interested in John Finnis: "The Good of Marriage and the Morality of Sexual Relations".

Legal Positivism

MON/MAR16

We turn this week to an examination of the main competitor to natural law theory: legal positivism. Austin provides one of the early and classical views of the positivist conception of law. You should be able to pick out the core features or elements of his positivist conception of law. As you read this selection, bring it into conversation with the natural law view of Aquinas. What are the strengths of Austin's approach in contrast to Aquinas' natural law approach? What are the weaknesses of his positivist conception of law?

Read:

  • John Austin, The Province of Jurisprudence Determined (Culver, pages 69 - 84). Focus on pages 68 - 76 (ending whee Austin writes, "Like most of the leading terms...") and 79 - 84.

  • You may also find it worthwhile to read Culver's introduction to legal positivism, pages 63 - 68.

You may also find helpful:​

Micro Essay: How do you think  a proponent of legal positivism such as John Austin would address the case of the speluncean explorers? Do you find this analysis persuasive?

WEDS/MAR 18

As you read Hart's revised version of legal positivism, you should be thinking about how Hart's approach to legal positivism differs from Austin's: what objections are there to Austin's account of legal positivism? How does Hart attempt to address weaknesses in Austin's approach? Finally, we might consider the strengths and weaknesses of legal positivism more generally.

Read: H.L.A. Hart, "Law as the Union of Primary and Secondary Rules" (Culver, pages 106 - 118)

Micro Essay: In order to help you navigate this reading, rather than a micro essay, complete these study questions and be prepared to hand them in after our class discussion.

Fri/Mar 20

Read:

Micro Essay: How would you decide the case of Riggs v. Palmer? How would you justify your decision?

Dworkin and Integrity

Mon/Mar 23

In today's reading, Dworkin criticizes several aspects of Hart's view of law as the union of primary and secondary rules. Section 2 summarizes key features of Austin's and Hart's positivism. You can read this section quickly. Dworkin's critique of Hart begins in section 3 with his discussion of principles.

Watch: Why do we obey the law?

Read:

Micro Essay: "The Model of Rules" is primarily concerned with the critique of Hart's legal positivism. Can you briefly articulate in your own words Dworkin's criticisms of Hart's legal theory?

Dworkin works within the natural law tradition and if you are interested in his thought on that tradition, you might read: Natural Law Revisited . If you're interested in Dworkin's analysis of Riggs v. Palmer, check out: Dworkin's Legal Theory: Riggs v. Palmer.

Weds/Mar 25

Where in the previous Dworkin reading, he was primarily concerned with a critique of legal positivism, in this selection Dworkin provides more information on his own theory of "law as interpretation." As you read this selection, think about the central concepts and metaphors Dworkin uses in accounting for the law: interpretation, chain novel, integrity.

Read: Ronald Dworkin, "Integrity in Law" (Culver, pages 155 - 171)

Micro Essay: Dworkin calls his approach to law "law as integrity" and maintains that it is an alternative to both natural law and legal positivism. We saw in "The Model of Rules" that Dworkin rejects Hart's legal positivism. Dworkin's own view is a variant on natural law theory. Let's see if we can articulate in what ways Dworkin's theory of law bears resemblance to natural law theory. Can you identify one or two ways that his account of law as integrity is similar to natural law theory?

Legal Realism

Fri/Mar 27

Read:

  • Oliver Wendell Holmes, "The Path of the Law" (Culver 177 - 182)

  • You might also find helpful Culver's introduction to legal realism: pages 173 - 177

  • Basic Elements of Legal Realism

Micro Essay: In his opening statement before the Senate Judiciary Committee as part of his nomination hearings, John Roberts stated: "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire." (You can read Roberts' full remarks before the Senate Judiciary Committee HERE and watch a clip of the relevant remarks HERE.) Based on your reading of Holmes, how would a legal realist assess these claims?

Mon/Mar 30

Read: Jerome Frank, Law and the Modern Mind

Micro Essay: Let's see if we can engage in some comparative analysis, comparing and contrasting legal realism with Dworkin's interpretive view of law as integrity. Drawing on your reading of Frank, as well our discussion of Holmes, can you identify one or two points on which you might productively compare Dworkin and the legal realists?

Do you think what a judge had for lunch affects justice? Check this out for an interesting take on legal realism.

Feminist Jurisprudence

Weds/Apr 1

Read:

  • Patricia Smith, "Feminist Jurisprudence and the Nature of Law" (Culver 218 - 227)

  • If you're interested in more about feminist theory, see The Diversity of Feminist Theory

Micro Essay: Read THIS and consider the contrast between O'Connor and Sotomayor's comments. How do O'Connor's and Sotomayor's perspectives differ? Who you do find yourself agreeing with more, O'Connor or Sotomayor? Why?

Fri/Apr 3

Read: Catherine A. Mackinnon, "Toward Feminist Jurisprudence" (Culver 227 - 236)

Micro Essay: MacKinnon agrees with Smith that feminist jurisprudence entails a cultural revolution in which we come to see the law from the standpoint of women for the first time. Can you identify some of the specific ways Mackinnon suggests the law would be transformed if we approach it from the lens of sex equality?

Critical Race Theory

Mon/Apr 6

Read:

Micro Essay: Delgado, like Smith, employs the notion of different or competing paradigms, in this case to describe the contrast between two approaches to thinking about hate speech: from the perspective or paradigm of civil liberties and the perspective or paradigm of civil rights. Can you describe three or four ways in which these competing perspectives or paradigms differ? 

Second Writing Assignment

Weds/Apr 8: Draft Due: Peer Review Writing Workshop

Fri/Apr 17: Final Draft of Second Writing Assignment Due

Part Three: Privacy and Facial Recognition Technology

Weds/Apr 15

 

Fri/Apr 17

Final Draft of Second Writing Assignment Due

Mon/Apr 20

Weds/Apr 22

Think about some of our current dilemmas regarding privacy. How has the nature of privacy changed due to the changing nature of technology, especially the Internet and social networking sites. Think about the role of the media in privacy, a concern already when W&B were writing. Also, we should think about the constitutional status of the right to privacy.  Consider the recent case involving GPS: United States v. Jones. There is a lot of information on this case at EPIC and SCOTUS Blog. HERE is an outline of the Government's argument.

Read:

Micro Essay: If Warren and Brandeis were alive today and examining the issue of facial recognition, what do you think they would have to say about the matter? How might their analysis of privacy from 1890 be relevantly updated to our experience with facial recognition technology?

You might also be interested in Brandeis' dissent in Olmstead v. U.S. in which the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights provided by the Fourth and Fifth Amendments. Brandeis' dissent is a famous early statement on privacy and government intrusion. A brief op-ed I wrote on Brandeis, Olmstead, and the Snowden affair can be read HERE.

Fri/Apr 24

As Robert George notes in "The Bad Decision That Started It All": "the Supreme Court of the United States struck down state laws forbidding the sale, distribution, and use of contraceptives on the basis of a novel constitutional doctrine known as the “right to marital privacy.”At the time, the decision appeared to be harmless. After all, Griswold simply allowed married couples to decide whether to use contraceptives. But the Supreme Court soon transformed the “right to privacy” (the reference to marriage quickly disappeared) into a powerful tool for making public policy." Today, we'll read selections from the Griswold case and discuss its implications for privacy.

Read: 

Micro Essay:​ Let's take the issue of Griswold to be whether there is a right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Can you reconstruct Douglas' argument addressing this issue?

For an interesting take on Griswold, see "The Bad Decision That Started It All". Once we've reconstructed Douglas'

 argument, we should think about and discuss Black's dissent. What are his objections to Douglas' majority opinion?

Mon/Apr 27

Read: Robert H. Bork, "The Right of Privacy"

Micro Essay: On the basis of his critique of Douglas' majority opinion in Griswold, what do you think Bork would say about the right to be forgotten? What do you think of his analysis?

There are several selections available online that provide more background on the issue of privacy and Bork's legal philosophy. For more from Bork, see: Robert Bork: Neutral Principles and Some First Amendment Problems. Also, see his "Of Moralism, Moral Relativism and the Constitution."

Weds/Apr 29

Read:

 

Fri/May 1

Read:

Mon/May 4

Read:

Third Writing Assignment

Weds/May 6: Draft Due: Peer Review Writing Workshop

Final Draft Due: Monday May XXX, by noon in my office HUM 154

Office Hours:

MWF 12:00 - 1:00, T 1:30 - 3:30, and by appointment