Notes on the Philosophy of Law

PHL 354: Philosophy of Law
Philosophy Tutoring Monday- 6-8 134 Kedzie

Week 02 Lecture 02
Philosophy and the Law (3-14)

If there were no law would there be a society?
Why have Laws?

If we had no agreement in law we wouldn’t be a society, in a sense having some sort of rules makes us a society.
We need a sense of rules and governance to have order and society to exist. Beneficial to US
Prevent Fighting: Those of you who have read Thomas Hobbs, this idea of it would be a war of all against all. Life would be nasty brutish and short.
To protect people from each other: We need laws to protect people from the government, it sets some limits to the government.
Keep government in check- we don’t want the government to have unlimited power.
Laws to promote Justice- to create and bring about justice
To govern ourselves- to keep some form of order.
Fosters morals-
Empower ourselves- if we don’t like something; we can use the law to change something (protest, petition). There are lots of ways we can influence the law.
Regulate commerce-

10:55 Branches of Law:

Procedural Law- lays out how the legal system works how laws regulate the society
Civil Law- private law
Criminal Law- public law (State)

What is the difference between Civil Law and Criminal Law?
The distinction here is that in Criminal Law it’s the government that brings the lawsuit against someone.
What are examples of Criminal law and why are they seen as criminal law?
Crimes against the state.
What kind of examples do you have for civil law?
Tort, divorce.

OVER ALL: Public law (crime) vs Private Law (Civil)

Sources of Law 15:45

Legislature- One place you get the law is the legislature, laws are made.
Constitution- looking what is said and interpreting it, and how we can extract laws from the constitution. Ex) Free speech in the internet, free speech in the bill of rights but it’s not like the internet was conceived during the time when the constitution was being passed. Therefore, a lot of the constitutional law has a lot to do with looking what is said and interpreting it in different theories in how to interpret that.
Judicial Law- 17.52 Comes from of law making, when you look into a prior case somehow being relevant to what we are doing is precedence. Now there is a principle saying that you should follow precedence and that is stare decisis. How do we rigidly follow this principle of stare decisis? If the case has been decided before, must you always follow exactly was what was decided before? Absolutely not, you should look at prior cases and try to follow them and extract those principles from those cases and the relevance is in the case at hand. Sometimes laws change, sometimes the supreme court reverses itself.
Administrative Law- laws that come from many agencies ( FCC, FDA). Regulations.

20.25 ETHICAL APPROACHES TO THE LAW

A lot of the law relate to ethical behavior, moral behavior, so the laws will foster some kind of moral system. Law is suppose to create justice and justice is connected with our sense of morality. With morality, I just don’t mean moral rules that comes from a religious authority or god. A lot of people associate morality with religion, and religion is very connected with morality but within philosophy we can talk about being a good person, what’s the right thing to do. Philosophers talk about those kinds of questions in terms of moral theory. The law tries to make sure that we function in a way a good society should function. We treat each other good.

? What does it mean to do something that is the right thing to do? What does it mean for an action to be morally good as oppose to immorally bad?

Questions as to what caused the death.

34:04 What Would be the moral theory that would be associated with the life boat dilemma?
What would be moral theory life boat:
Ethical Approaches for the law
What does it mean to for an action to be good as oppose to be immoral.

* Consequentialism- evaluates morality by looking only at that action’s consequences
(What matters is the outcome to bring out the most good).
In the life boat situation, what are the intentions, they didn’t mean to kill any body or they did mean to, they knew what they were doing. According to a consequentialist moral theoriest that is not important, what matters is the likelihood of the actions to bring about the most good. So the clearest consequentialist analyst of the case of the over crowded lifeboat would be to say that given then information we were given about the likelihood of surviving and being found, it makes sense to save the most lives. How do we save the most lives? Probably by getting strong people on the boat and who knows where their going and letting a few people to die. What matters is the over all consequences.

They seek to maximize some good: Utilitarianism talks about this in terms of utility.
So what good are we trying to maximize? If you want morality to be to be the action that has the best consequences, what consequences in terms of what?
Extrinsic value v. intrinsic value: Utilitarianism is one kind of consequentialism that focuses on maximizing utility or pleasure. Which he says is of intrinsic value.
What is the difference between intrinsic value and extrinsic value?

Intrinsic value (pleasure) Something we value in of in itself as oppose to extrinsic value that we value because it gets us to something else that we think is important.
Extrinsic Value- Something we value because it gets you something else. Ex) money, the paper is not worth anymore intrinsically, it’s the same paper, it’s not like a gold coin vs a rock. But paper money is perfect example that has extrinsic value. That is valued in you in our society because it can buy it something that we like. You need money to get you other things that are intrinsically value.
Utilitarianism, as a moral theory, says that morality is about brining about the most pleasure and the most happiness.
?So if I’m utilitarian, do I define morality as being whatever will give me pleasure most happiness? Is morality about pleasure? No. We often think about morality as not being at least about our own pleasure. If I know that moral thing to do is to help someone in need and not to lie and cheat. Sometimes my own pleasure would be enhance if I just did whatever I wanted and ignore my responsibilities. ? So how can Mill claim that morality is about pleasure, increasing the amount of pleasure?
So utilitarianism doesn’t just pay attention to doing the action. But it talks about increasing the overall greatest happiness for the greatest number.
Jeremy Benthem- Will this action bring about the greatest amount of happiness to the greatest amount of people while causing the least pain.
It makes sense to save the most lives; pushing people off the boat.

48:20
Mills Utilitarianism
Mills is a consequentialism (he is one of the most prominent), which his version of consequentialism is Utilitarianism.

The thing of intrinsic value is utility or pleasure,

Principle of Utility Actions
Are right in insofar as they tend to promote happiness or pleasure.
They are wrong insofar that they tend to promote unhappiness.

the people that walked away from Omelas did so because they were able to see that the pleasures that were available because of the suffering of the child were inferior to the pleasures of being free of needing that child to suffer.
Overall, The greater good is where everyone is willing to sacrifice their own happiness for the overall happiness.
Utilitarianism in Omelas would not have seen the justness in only one person suffering for everyone else to be happy

In utilitarianism, the right thing to do the morally thing to do is whatever brings about the most pleasure for the most people and causes the least pain for the least number of people.

1.02.01

Problems with Utilitarianism

Distribution across individuals is ignored.
No respect for what a person “deserves.”:
Hard to calculate/predict
Doesn’t treat people ‘ends in themselves’: we think people should be treated with dignity and respect. The child is not being treated in a morally dignified way.

Week 03 Lecture 01 Monday September 10
Review:

Utilitarianism, what ever produces the greatest happiness for the greatest number of people. We subtract from that the amount of harm and suffering that is caused over all.

4:45

Problems with Utilitarianism
- No attn. paid to distribution of pain and pleasures across people.
- No attn to responsibility- in regards to Omelas, did the child do something wrong, which the child is responsible and suffering. It doesn’t matter according to Utilitarianism, and that seems to be a problem.
- Allows people to be used as a mere means to an end: we tend to think that we should people with respect and regards them as ends as in themselves and not just use them to further someone else’s happiness or even the happiness of a little society is 4 months of being on the way.

The consequences of our actions matter, what’s really going to happen with our actions?

12:40

In contrast to utilitarianism Emmanuel Kant offers “deontology (duty ethics) Kant”
REASON FOR THE ACTION
In utilitarianism to decide if an action is moral or not we look at the consequences, in contrast from Kant, we don’t look at the consequences or the likely consequences of an action instead we look at the reason why the actor performed the action. What was their intentions, and what motivated them for taking these actions. For Kant, what kind of motivation or what kind of action. What makes an action the right kind of action.

What matters is, whether you took an action out of the sense of moral duty, if you took an action out for some other reason it doesn’t have moral value it may still be the right thing to do but morally correct actions actually done from duty.

Ex) guy walking by sees a kid drowning a kid in the pool:
Do it because it’s the right thing to do: my action is morally praise worthy.
Do it because the child’s father owes me money and I have to get the money back to save the child so the father would pay me more quickly: Kant believes there is a difference between these two actions.
A utilitarianism would say, the consequences is what matters, you save the child morally good deed. Kant would say save the child, but the reasons you did it were not morally praise worthy. It doesn’t have moral value, to have moral value you have to do an action for the right reasons.

18:00 Think about to the Life Boat ethics? Kant would say, what were your intentions in taking a certain action and looking at what your intention is is how you determine whether the action is morally praise worthy or not, not looking at the consequences.

Kant is all about acting for the right moral good.

What motivated them to do an action?

Morally connect action is action done from duty.
Maxim- Principle of one’s willing. When doing a duty, what is the Maxim (principle) I’m following?:
Sometimes you have to ask yourself, what principle am I using when taking an action or what’s really motivating me to take these actions.
I like learning
I want to get good grades get into good law school and make lots of money.

The principle when you will undertake certain action, what principle is it that you are willing.
You could think about 2 different kinds of requirements principle you follow.

21:50

Hypothetical vs. Categorical

22:16 Categorical: no matter what at all circumstances. It is demand from you no matter what. It’s your duty regardless of what you want or desires. Something categorical is something that’s always the case. When use the word categorical in general it means it’s always the case. The categorical imperative for Kant, its demanded of you of all circumstances, you don’t think if I want this drowning child’s father to pay me back then I must save the child, you think it’s my duty regardless of what I want, regardless of my desires, its my duty to act moral.
Hypothetical: something that is hypothetical only holds if something else is the case. Ex) If I get a job you should dress professional.

3 ways Kant formulate Categorical:

26:40** 1st formulation of the categorical imperative: Act only on that maxim by which you can will to be a universal law (do as to others as want others do on to you).
This is the first way Kant formulates the categorical imperative.
According to this formulation, you should only act according to a principle. You should only act on principles that you could find to be universal.

Q&R
Why be moral: Morality creates a sense of conformity and unity. When there is unity there is a social order. It’s for the betterment of mankind. This over all looks at the consequences
What would Kant say? Be moral is being human, it’s in our nature to act in a way in accordance to reason. That means respecting people

________

35:30 ** 2nd Formulation: Always treat humanity as an end, never merely as a means. Ex) hospital routine check up, Doctor steals organs to save five individuals (Utilitarianism). This goes against Kant’s theories and beliefs.

Is it ever ok to use someone as a means to an end to my means?
Using an accountant to do your taxes? No, promoting her business, using each other but not using each other as a mere means to an end.
A person copying your notes, they are using you as merely as a means to an end, there’s no relationship. There is no reciprocating sense where you both are copying out of each other.

40: 42 Problems with Kant’s moral theory

It seems sometimes that we want to look at the consequences, it seems esoteric, it seems abstractions, do the right thing don’t look at the consequences. Kant thinks we should be able to figure things out according to reason alone a priori , we should know the right thing to do is. Sometimes we need to look at the consequences we need to look at the consequences of different actions to determine something about my moral.

47:00
Problems with deontology (Deontology is just Kant’s Ethics)

Sometimes the duties we are told are not our duty. What someone else defines as your duty, follow these orders, treat them this way, that’s not really your duty, that’s not your moral duty, you may have to do it to keep your place in the Nazi regime, but that’s not really your duty.
Your moral duty is connected by your affection ex) visiting sick sister in the hospital not because its my duty.
Consequences do matter.
May vary actions per person

The Nuremberg Trial

The crimes against humanity is internal and the war crimes are external

What was the main issue in our text; How to conduct the proceedings procedure. How are we going to implement laws creating created by legislative branches.

Wyzanski has 3 main points as to why the Nazi’s should not be tried on these grounds. He’s not saying that the Nazis should not be prosecuted.

They need to be prosecuted on different grounds. It’s wrong to enact laws ex post facto.
2nd is that there is no precedence in trialing an individual, they said they were just following orders.

True or false. Wyzanski Nazis should be tried because they weren’t following international laws anyways at the time, as historically they were not following international laws. So if such a law were in placed against trying individuals they would not follow that law as well. So they were total law breakers. FALSE. That is Jacksons arguments.

POINTS by JACKSON

Nazis just following orders is not a legitimate defense. As human beings, we should expect that individuals can say no or take responsibility for their actions. It’s just common sense.

Innate ability to know what’s moral and what’s moral. International law is more than just a scholarly collection that abstracts principles. This means just sometimes, events are so atrocious that we don’t need to look at a law book to know that . We know that genocide is wrong, its absurd in considering to let them go.

August 1945, came after the conclusion of world war II.
It involved the prosecution of high ranking Nazi officials.
They were charged for 4 different types of crimes:

1. Common plan/ conspiracy (United States)
2. Crimes against the peace (Great Britain)
3. War Crimes: Murdering, deporting civilians to slave labor, ill treatment of prisoners of wars, destroying villages. (Handled by France)
4. Crimes Against humanity (Soviet Union)

The US, Great Britain, France, and the Soviet Union am were in charge of bringing responsibility to the crimes of the Nazi officials

There are some difference in the prosecution process in these countries. There were some questions on how the Nazi officials were prosecuted.

The question is “How can it be that what these men did under the Nazi regime in accordance to the rules and laws of the Nazi regime, how can you say what they did was illegal.” What they did was clearly immoral and believed they should be punished. But not according to Wyzanski according to these trials that suggested that they actually broke the law. What law did they break?

Week 03 Lecture 02 Wednesday September 12
Mill, “On Liberty” (243-251)

NEWS and Announcements:

16:15 Jackson and Wyzanski of the Nuremberg Trials:

How do we go about prosecuting them using these courts systems that was set up after the crimes were committed. So one big issue is, the question of ex post facto law- the law is made after the fact the crime was committed. Generally in society people think this law is unaccepted. One cannot simply make the law after the fact it was committed, when during that time when the action was committed there were no law for it.
-There were several ways Jackson responds to this. That there was some kind of international consensus that doing these various things were wrong.

If there was a new law created in the prosecution of the Nazis’ for these crimes, what was it, what’s his claim that there was this ex post facto law going on here when these men are being charge, when these were crime at the time?
Waging an aggressive war. Has there been a precedence that we are not allowed to wage an aggressive war. One thing that Wyzanski says is that these men are being prosecuted as individuals for starting an aggressive war and there isn’t really precedence for prosecuting an individual for that kind of thing, we think of nations as starting wars not individuals.
Whether the Nazis were following their own laws. The text book states, were they following international laws or their own laws? It seems like an odd defense, well there are no laws that their breaking. Did the Nazis respect international laws. The Nazis had their laws to guide their own. Pg 26,27
At the bottom of 26, it’s quoting from a German document. *** use for paper***

4 counts at Nuremberg

Common plan/ conspiracy (31:15)- Wyzanski doesn’t simply think they were following orders and should be let off. Wyzanski states that the trial was illegitimate not for these reasons but for. Simply stating following orders I not going to count as defense. These were individuals who were high ranking officials giving orders. Wyzanski
Crimes against the peace
War Crimes
Crimes Against humanity

18:49 Book discussion

LAW, LIBERTY, MORALITY & FREE SPEECH

Mill, “On Liberty” ( 243-251)

34:40 Reading by John Stewart Mills Harm principle

He thinks this goes along with Utilitarianism. Utilitarianism is a moral theory about what the morally correct action is. In the harm principle, Mills is asking the what the scope of the law is, when does a society have the right to make something illegal. Whats the justification we have for passing a law. What are the limits of restricted law making and to what extent do the opinions and the moral view of the majority and to what extent to those come into play. Should we make laws to enforce, certain things that the majority think is majority important. Mill thinks, no, just because the majority thinks it’s important, it’s not a sufficient reason to pass the law. In what cases does he think a society justified in passing a law and restricting our liberty.

He believes, the only reason the government can pass laws is to prevent harm to other people. This is called Mill’s harm principle.

What is the justification of passing a law.
39:15 Mill’s harm principle- The only reason a society can limit a person’s freedom of thought & action is prevent harm to others. claims that society does need a law to protect themselves. What do we call a law has and is intended to protect people from harming themselves. Are there any laws like that? A lot of laws says you can’t harm other people.
Suicide. Some drug laws are written in such a way to to protect themselves.

Mill does not agree with these:
45:30 in contrast to Mill’s harm principle is paternalism ( protect people from themselves like a parent would do, perhaps where this word came from).
Ex) Seat belt laws so an individual does not endanger themselves.
Putting people in mental institution to prevent themselves from harming themselves.
Not allowing kids sitting in front of the car.
In contrast to Moralism.
A society degrades itself when it permits these things. Mill wants to say, a society should not promote certain moral ideas as long no one is being harm, so should society promote moral idea that murder is wrong or that rape is wrong. YESS because these involve as harming other people. But for a society to say we should prohibit something just because people think its immoral, Mill would disagree with that.

OWN IDEAS: Mill is not concern with people protecting themselves from harm, what Mill is concern about is placing laws that will prevent harm against people. Mill also does not believe that people should decide what moral is and what should be the law based on majority vote.

51:46

Why does Mill think that Freedom of expression/speech is so important?
When something is sees something is wrong, someone is allowed to raise it and doesn’t get shut up. People hear this view and people are open to hear and they can respond by thinking why they hold their view and they can give reasons for it. They are holding their view as more rational, thoughtful as oppose to just being reactionary.
Does mill think that according to the harm principle, does this principle state that anytime any action that harms other people should be against the law. Why doesn’t mill think that’s a sufficient reason to pass a law?
The answer is no,
People need to take responsibilities for themselves.

Devlin, “The Enforcement of Morals” (261-265)

1.05.45 Reading by Patrick Devlin

It’s not a direct response to Mill. Was written 100 years later after mill
Wolfen report: is a report on homosexual offenses and prostitution. What it did was, it made homosexual acts between consenting adults in private, it should not be prosecuted criminally and says street prostitution is illegal but when prostitution is done in private is legal, which harmed no one but its participates. Should not be harmed by law. So these private acts on prostitution and homosexual sex should not be criminalized.
Made illegal because it should not be permissible in public visible to children.
The general idea, we can make laws about certain things but we shouldn’t prohibit people from doing things from the privacy of their own home.
!Devlin disagrees with that! Because societ shouldn’t make certain social things illegal. He sinks the questions in pg 261. However morality, should punish immoral behavior ( aj thoughts: punishing people for their immoral behaviors takes from the idea of god as omnipresence, though it’s private it’s still immoral because it’s in your thoughts, by the government dictating our actions in private, it’s like their governing your thoughts, which is an overall totalitarian).
What constitutes sin? What makes a sinful behavior? Sin comes from religion, but may be there are other ways to decide what sin is without the base for religion.

1:14:40

Premise 1) Society should be protected (from disintegrating)
-His first premise of his argument is that society should be protected from disintegrating.
Premise 2) A shared morality is necessary to protect society
- if you’re looking at an argument and you find something problematic. You have a couple of ways in disagreeing with the argument. You can say that you don’t accept one of these premises or you could say accept the premises but the conclusion isn’t properly connected to the premises.

Conclusion: Society should enforce a shared morality

LAW, LIBERTY, MORALITY & FREE SPEECH

Week 04 Lecture 01
M 9/17 Devlin, “The Enforcement of Morals” (261-265)

Devlin goes against Mill’s “Harm Principle” and says there is actually another reason why we can make laws and limit peoples’ liberties. Well, we can limit people’s liberties by passing laws in order to protect the morality of a society. So this is one way to lay out what his argument is for why society needs laws that up hold a common morality a shared morality. So I ask you to think about this argument and if you don’t agree with Devili’s conclusion which some of you I take it aren’t going to agree with this conclusion that society shouldn’t enforce a shared morality. If you don’t agree with his claim on that, why not? He says it follows from the two premises:

Devlin
Premise:
1) Society should be protected (from disintegrating)

We need a share morality to do this.
How does society disintegrate?

2) A shared morality is needed to protect society
Should society pass laws that enforces shared morality, just for that reason. Either there are pending laws, say laws against murder. So murder harms other people, so we need laws against for that reason not because It happens to just be our personal belief that most of us hold very deeply, our moral belief that are murder is wrong. Whether or not we believe that other people are being harmed when their murdered so we need laws against that.
So Devlin’s examples concern things that don’t involve harming other people but they involve an offense to our moral belief.
Is that a sufficient reason for passing laws? So there’s a question about what morality means and maybe.
So how does Devlin’s define morality, he doesn’t say that every single person has to hold a view, but he does say do we know that the shared morality is. Well he gives the example of man on the street if you were to ask people what you think about this. Most people would agree on certain moral ground rules not every single person but a reasonable person.
Maybe we don’t all agree that abortion Is wrong, or whether burning the flag is wrong. So there is a lot of things that we care about but yet disagree.
So one of the questions is morality and how much of the morality needs to e shared. So he uses the example of sexuality in cases when people have different ideas about what kind of sexuality is moral. There’s still disagreement about this. What does Devlin say?
So shared morality is needed to hold society together. The idea is if you let people violate the morality that most people hold, that society is going to fall apart. You could say that if you enforce a shared morality and punish people who disobey that morality of the general society either when they are not hurting other people, when you do that , even though they’re not hurting other people. If you do that that, that will actually lead to un rest to people into rebellion. If you force religion It’s kind of forcing religion.
It’s interesting that society does favor certain moralty.

Conclusion: Society should enforce a shared morality.

13:40 another of Devlin’s disintegration how does society disintegrate, what does Devlin have in mind?

Hart, “Law, Liberty, and Morality” ( 266-268) 19:37 Hartz’s essay a critique to Devlin

Hart’s essay is basically a critique of Devlin and he talks about Devlin’s argument in terms of a moderate vs. an extreme thesis.
Society does not need to enforce a shared morality, that’s not a god justification for passing laws and he notes that Devlin puts this argument forward there are two ways of understanding the claim that society shouldn’t force a shared morality.
This is the case, you can look at Devlin’s argument and say in some sense a society should not forced a shared morality is that negative consequences would ensue if society doesn’t do this because society will disintegrate and that would be bad. That’s a bad consequence and hart calls that the Moderate thesis. society should enforce a share morality:

21:50 Moderate thesis: a shared morality itself is good because it leads to good consequences. Its inherently a good thing
He calls this the moderate thesis because it says that a shared morality itself is good because it leads to good consequences. He thinks it’s more moderate what Steven argues which is a more extreme version of this. At times, Devlin seems also upholds the extreme version and that a shared morality is just valuable in of in itself.

22:46 Extreme thesis: morality is inherently a good thing

21:18 Hart believes Devlin assumes:

Immorality weakens society.
What would Mill say that immorality weakens society? Remember when we read Mill’s essay about the Harm principle and he’s talking about the importance of free expression and people do things that is immoral, is society weaken according to John Stewart Mill?
A) not unless someone is harmed by it. So if someone does something that you think is immoral, it doesn’t necessarily weaken society unless someone is harmed.
What might Mill also say if someone does something immoral? It could be the case the someone learn from that and it raises it as a discussion issue and society looks more critically at it’s own morality and thinks about and reflects upon why it’s so important. So it could enhance people ability to think critically according to Mill. In any case Heart says, Devlin just assumes this and he doesn’t have adequate reason for it, and does not adequately defend the claim.
Second, he says, Devlin assumes that all of morality forms one seamless web.

26:20 all of morality forms a seamless web: Devlin assumes, sexual acts done in private, will lead to break down of humanity but theres no evidence for that.

So this is the idea that all of morality is this one cohesive thing, a seamless web and if someone breaks with some aspect of morality then all of a sudden they’re not being moral and society will fall.
Actually people can be immoral in lots of minor ways that all of society doesn’t necessary fall apart, you know you have little infractions of morality that aren’t going to lead to down to the disintegration of society. So specifically Devlin assumes that sexual acts done in private that most people think are immoral, and that it’s going to lead to the breakdown of all morality and Heart says there is no evidence for that.
Third, he says that Devlin assumes that society identical to its morality at any moment in history.

27:25 A society is identified with its morality at any moment in time:
So the claim here is that Devlin is assuming that societies can be summed up by their morality at any moment in time. So if anything changes in the society, the society has disintegrated and all of a sudden we become a new society.
If you look at peoples views about various world matters, that doesn’t seem to be the case, we are not a completely new society than we were 20 years ago when people had different views about things. Ex) different views on relational genders, religious, sexuality, race, slavery was legal and morally acceptable to people, years and years ago. The day of slavery was outlawed, did the society become a completely new society. Well in some ways yes, well society can evolve and change. Devlin’s suggestion that we need society to maintain morality also suggest that we can never evolve or change. Because society always has to maintain the same morality . If it’s a seamless web and it’s morality is whatever it is in any given time. So heart claims these are three serious problems.

Heart is more or less defending a position somewhat similar to Mill’s Harm principle. At least he’s saying, look there isn’t a good case for society passing laws only on the bases of morality.

2 cases that raises the issue of freedom of expression! As someone pointed out, it doesn’t seem as though Devlin’s argument pays enough attention to the principle we have of free speech, freedom of expression.
Why is free speech so important according to the defenders of free speech?
A) So the idea is that free speech is important to getting to the truth, if you wanna find out about what’s really true, we need to have people express a variety of opinions.

30:44
32:20 Free Speech

Gets us closer to the truth: We can find he truth about something when ideas are raised and people question them.
Imp to democracy: Its also said to be important to the maintenance of democracy where everyone gets to air their views or their view that people don’t think are morally correct. We believe that it’s important for democracy that there is kind of freedom to express ourselves.
Martketplace of ideas: We can also think of free speech in terms the market place of ideas which is related to both of these. The idea that people should be able to hear a variety of different perspectives and choose from themselves which they find most convincing.

So do we have laws that restrict freedom of expression and free speech?
A)
34:20 Prohibited

Yelling fire in a crowded auditorium.
Slander and Libel: spread drui,prsa
Obscenity: fuck the draft
Threats:
Fighting Words: encite people to violence
False Advertising:

The government does restrict certain kinds of speech, and there are certain principles that are followed when the is deciding what constitutes speech that cannot be restricted vs speech that can be. The general principle that the government follows when restricting free speech which is guaranteed by the 1st amendement. The Standard that’s used is called the “Standard Strict Scrutiny”. Racial classification are also said to fall under strict scrutiny. So any restriction of speech has to meet these 2 criteria. One is that the government has to have a compelling interest that is seeking forward when it passes a law when restricting speech.

40:55 Strict Scrutiny framework

Government must have compelling state interest: has to have a really good reason to pass a law against freedom of speech.
Law must be morally tailored to achieve interest: It has to be aimed at a very specific way to achieving this interest. It could be done in a different ways, a lot has to be tailored narrowly to achieve this interest.
Restrictions must be content mutual: The way this is cashed out in the courts is that the law cannot be aiming to restrict such based on its content. It’s offensive under restriction. Something about a general framework according to this country has used to regulate a freedom of expression.

“Edmund G. Brown, Jr., Governor of Calif., et al., Petitioners v. Entertainment (252-261)

Restriction of violent video games. In this case the supreme court looked at a California law that prohibited the sale of violent video games to minors and supreme court ultimately argued against this law it over turned this law before the law was enacted. A suit was filed and the video game makers and software companies, said this law is a violation of our freedom of expression.
Are video games covered under the first amendment? Yes, they are, and California agree that video games are covered under the first amendment.

it may desensitize people to violence.
The court says that there needs to be more correlation between video games and violence.

Week 04 Lecture 02
Wed 9/19/2012

8:00 “Edmund G. Brown, Jr., Governor of Calif., et al., Petitioners v. Entertainment Merchants Association, et al.” (252-261)

Brown vs. Entertainment Merchants Association- Video game law of certain restrictions of certain video games to minors. So these very realistic violent video games.
An analogy that was made into an earlier case. US vs. Stevens that I wanted to mentioned because it serves as an important precedence. A case that was decided in 2010 and the Brown case.
So in 2010 the court upheld that the depiction of animal cruelty in videos could not be subject to prior restraints. The torturing and harming of large animals. What the law says that the depiction of animal cruelty are not subject to regulation because depicting animal cruelty and engaging in it are not the same thing. The way that the attempts to band animal cruelty depictions was made. There was an analogy made to obscenity, I mentioned this a little on Monday. The Us law does not protect obscenity from free speech regulation, So obscenity can be limited in ways that violence cant be. Obscenity has something to do with material that is sexually arousing or that is thought to provoke sexual arousment.
In the Miller case. Miller vs California. That define obscenity. The test of obscenity has 3 prompts, One is this question of whether the average person applying contemporary community standards would that the work taken as a whole appeals to the perient interest. So does it appeal to one’s sexual interest. Well how do you determine this? The idea is would this be something that would sexually arouse the average person in that community.
But who is the average person? The average person in china, average person in Michigan, the average person in rural Philippines etc. So a lot of materials are in the internet now. So there is this basic question about how do enforce this idea of appealing to the standards of the community. This is one problem with the law, So does it appeal to this interest
It also has to be dealing with sexual content to be deemed obscene.
Lastly, it has to be the case, taken as a whole, the work lacks serious literally, artistic, political or scientific value ( also known as the SLAP test). So it could be the case you could have that meets the first two criteria that its design to appeal to people’s peering interest and that it depicts something that involves sexuality but it has serious scientific value.

16:05 “Village of Skokie v. National Socialist Party of America” (276-280)

A case in which American Nazi party wanted to march to Skokie Illinos.
So when the nazi wanted to march. There were several apprehension about this in the part of the village. We don’t want Nazis .
This would encite violence.
Allowing them to march would promotre violence.
Would it be plausibll.
Skokie was the suburb of Chicago.
Skokie people required them to get a very high insurance to march. So the Nazi part:
Cannot wear swastika 

21:35 Fighting Words: Chaplinsky vs. Hampshire (1942)

This laid out the fighting words doctrine that still gets referred to as.
This doctrine of fighting words allows for free speech to be restricted if it has a direct tendency to cause acts of violence by persons to whom individually the remark is addressed.
So the court looks at this argument in the Skokie case and actually says that it doesn’t meet the criteria of fighting words. So they say on page 278.

So again the Chaplinsky fighting words doctrine says that speech can be restricted only if it has a direct tendency to cause acts of violence by the persons to whom individually that remarks this address.

What are some kind of fighting words example:

Calling a person the N word.
Ex) What if a person hates gay people and states that homosexuality is wrong and they make some negative remarks about gay people, is that hate speech?
A) Well, no if it’s not directed at a particular person with the intention of harming that person and in the fighting words doctrine with indication that you may do harm to that person therefore you are provoking them to do harm on to you.
So in the Skokie case, they were allowed to march but in the end they didn’t march they ended up marching somewhere else in Chicago. It’s interesting to know that the ACLU was involved in this case.

26:32 At the end the were allowed to march. ACLU was involved in the case.

What is a Crime?

Week 05 Lecture 01

Required elements of crime under criminal law:

1) Violation of a specific Law
2) The law cannot be ex post facto. Has to be already existing
3) The defendant has to have committed the action with a state of mind defined by law which is called “Mens rea”.
4) The defendant must have commmited the action with the act of wrong doing. Actus reus. No excuse for Justification.

1) There must be a valid non-retroactive law prohibiting action A.

2) Defendant Commited A.
- Actus reus- an act of wrong doing
3) Defendant committed A q/ the state of mind def’d by law
Mens rea
No excuse or justification

Mens rea- “guilty mind intent

Excuse
Justification
If proven Def.
Lacked proper mental
State ex):
Insanity
Mistake
Infancy
Duress

Ex) an excuse is when someone did something wrong but they lack the mens rea. Ex. If you accidentally did something.

Defendant made correct choice given the circumstances.

All things considered, the actor made the right choice.

Ex) they did the right thing, but they had the mens rea when they committed the act.
For example, the protection of someone.

14:47

Traditional Approach
Emphasizes on actual suffering of the victim + harm
Traditional approach focus on consequences  utilitarianism

Emphasize on suffering of the victim (resulting harm) (Harm Doctrine)

It takes the traditional approach, the actor was not affected. Because it focuses on the life of another individual. He saved live (looked at the consequences).

Modern approach
Emphasis on the range of the actor’s control.
- Modern  Deontology

The court dealing with his case takes the modern approach, so it’s focusing on whether or not they think Dlugash had the intent to kill Geller. The final Verdict: prosecuted for attempted murder.

So what is the modern approach do? It focuses on the actors intent or control. Another case that is very important is peope vs dlugash.

29:30
Impossible Attempt:

19:51
People v Dlugash
1977 NY Ct of Appeals

The court dealing with his case takes the modern approach, so it’s focusing on whether or not they think Dlugash had the intent to kill Geller. The final Verdict: prosecuted for attempted murder.

Bush  shoots  Geller (dead lying on the floor).
Dlugash comes in after Geller was shot and also shoots Geller.

Is it possible to murder someone that was already dead.

They focus on the modern approach.
Focus on if Dlugash had the intent to kill Geller.

Verdict: Prosecuted for attempted

37:10
The Harm Doctrine (do not confuse with Harm Principle)

The Harm Doctrine is an example of a traditional approach. If someone attempts to do something wrong and fails, the punishment should be reduced.

Kadish argues against this. Kadish takes the modern approach.
He argues that the harm doctrine is inadequate first because it does not prevent crime. If we don’t punish attempted crime, we are setting the example for the public that it’s ok. We are also encouraging behavior in the part the actually tried criminal to the future: The criminal maybe more to say that, oh I can get away with these stuff I can do it again and it sets the example for the public. So he thinks we should focus in prosecuting in according to the actors intent. Because if we just focus on the consequences that is not bettering crime at all.

Harm Doctrine- Punishment should be reduced if the intended harm doesn’t occur.

2 questions:
Does this doctrine prevent crime?
Is it morally justified?

The harm doctrine fails in these both accounts. No justification to the harm principle.

Ex) 2 people shooting hard at a target.

Someone if attempts to do a crime but is unsuccessful, the punishment should be less severe.

KADISH arguing against the Harm Doctrine.
- He argues that inadequate first because

Week 05 Lecture 02
September 26, 12
Kadish, “The Criminal Law and the Luck of the Draw” (482-489)

Kadish: critique of the harm doctrine

Kadish says that this Harm doctrine that the traditional approach embodies. The harm doctrine, Kadish says that this embodied in our law and yet there is no good reason for it. He wants to show that there is really no good reason for maintaining any part of this traditional approach. In fact we should hold people responsible based on what they actually attempt to do. Whether or not the harm actually occurs. So if your going to defend the harm principle or the traditional approach to crime. It seems that there are two ways of defending this. =

a) It doesn’t work to prevent crime.
This looks similar. Think about the moral theories we think about. This looks very similar to consequentialism.

b) It isn’t justified by any normative principle: there is a moral principle we have the harm doctrine.
This looks very similar to deontology.
Lets looks at in principle, is this the right thing to do or not. Is there a moral principle behind this? What Kadish argues is that neither of this is the case.
So does having the harm doctrine embodied in the law actually reduce crime.
So thee are two ways he looks at this
Does it prevent the criminal from acting again. So if you punish someone for doing something. If there attempted harm doesn’t happen, is it going to prevent them from acting again?
A) you might go back get a little practice and succeed.
Kadish doesn’t think that punishing people less when their trying with all their might but fail is going to prevent them from committing an act in the future. In fact, Kadish doesn’t think that punishing people less when they’re trying with all their might but fail is gonna prevent them from commmiting an act in the future. In fact he thinks that if we punish them from having tried and done everything they could to succeed we should punish them just as much.
Another possibility, if it prevents crime, It doesn’t prevent the actual criminal to try really hard to kill again but it prevents other people who will see that attempting something and failing is not the same as attempting and succeeding. Is this a good argument
Does having this harm doctrine in place where you punish people more for creating actual harm than just for trying. Does it work to prevent other people from commiting crimes? Should we punish people equally for attempting or should we punish them more if they succeed and what are the effects of that. So think about that, if we had a law and someone broke it and what they try to do didn’t quite come off is it better in terms of future crime prevention that we punish less severely if they actually didn’t hurt someone?
A) There is some intuition or something that we have or most of us have that actually succeeding in creating harm in the world is worst than action that was take that wasn’t succeeded. ex) on the other hand would I be a worst person if I didn’t complete my act. Another example, what if I did hit someone but it didn’t kill them, they are alright but they would still be unhappy ( cofusing)

Should ones crime depend on luck, is that acceptable? Like the penal lottery system.

Justification and Excuse: The Insanity Defense e Robinson, “The Bomb Thief and the Theory of Justification Defenses” (500-506)
21:30 the Bomb CASE

Whether a person is justified in committing a crime, if the circumstances were not as the person believed them to be. The bomb thief case was an example that the actor was justified, So motiashkinashki is in a crowded jeruselum beach and saw back pack lying in the beach and steals it. He goes to an abandoned building to check the loot of what he has stolen. He opens the bag, only to find a ticking bomb. Instead of running away and leaving the bomb to just explode, he runs to a reception desk and tells them that he found back pack with a bomb in it. The police comes and they disconnect the bomb and determined that if the bomb had gone off a lot of people would have died. So the question is, is Ashkenashki guilty of the crime?
So all things equal, his actions was the right thing to do even though this justification of his action was unknown to him. So he was an unknowingly justified actor. So did the person do the right thing all things considered?

An the two approaches to this question of whether an actor is justified are called the deeds theory of justification and the reasons theory of justification.

A)

Traditional approach
Emphasize on suffering of the victim (resulting harm) (Harm Doctrine)

Modern Approach emphasize on actor’s control/intent

25:00
Deeds Theory of Justification

So according to the Deeds theory of justification. He was not responsible for theft, because the net effect of this actions in stealing this back pack, the net affect was to bring about a gain in human life. The net effect was actually averted with what he did. So you look at the deed itself.

Ashkinashki is a not a responsible for theft because effect was gain in human life. He is justified
It takes the traditional approach, the actor was not affected. Because it focuses on the life of another individual. He saved live (looked at the consequences).

Reasons theory of Justification

Ashkinashki is responsible for theft. Ashkinashki not justified.
He should be punished for because what he thought was doing was stealing.

29:30 Robinson passage at pg. 501

Robinson Defends the Deeds theory. The deeds theory is the right theory.
At the end we need to punish the deed, the deed was simply not stealing something and depriving the owner of it’s context, the deed was actually a good deed and yet distinguish and acknowledge this good deed from the actor who commited the deed in the way he commited it.
He says that Ashkinashki’s conduct was admirable but yet his motivation reprehensible. He thinks we need to be careful about how present this case, encouraging reprehensible behavior such as theft but we acknowledge overall he did at the end was a good thing.

He thinks the deed theory can make this distinction between someone’s motivation and the actual conduct all things considered in ways that the reasons theory can’t. It just looks at what’s going on in the person’s head.

35:24 exam* pay attention to the names of the authors. Which author defended what. What is the view of the view.

Morris, “The Abolition of the Insanity Defense” (518-522)
40:42 Insanity Defense

Insanity defense is never offered as a justification for committing a crime, “Oh I was insane therefore what I did was justified.” That’s not how the insanity defense comes into play. Instead the insanity defense Is considered an excuse. So if you’re insane, it doesn’t mean you did the right thing all things considered in committing this awful crime. What it means is that even if the conditions that you need to meet to commit a crime even if those are all met, if you are judged to be criminally insane then you are not guilty in the same way had you not be criminally insane. So insanity is way out or a way around those 4 requirements:
1) Violation of a specific Law
2) The law cannot be ex post facto. Has to be already existing
3) The defendant has to have committed the action with a state of mind defined by law which is called “Mens rea”.
4) The defendant must have commmited the action with the act of wrong doing. Actus reus. No excuse for Justification.

actor had to commit an act. it had to do so with the right mental component. It had to do so with mens rea. What comes into question here with the debate that we read between Morris and Mores. What they are talking about is whether insanity should be a special defense even if the other requirements for having to committed a crime are met if you’re insane you should get off at being punished as severely if you weren’t insane.

So Morris proposes that we abolish insanity as a special defense. Sometimes people who we judge to be insane don’t meet the mens rea requirement, they don’t really have the mental element and in that case they wouldn’t be guilty of the crime in the standard way. But in cases where they do meet all the conditions we shouldn’t have a special exceptions for them.

Steven Mores counters that and says no, we need an exception for the insanity defense because some people are extremely crazy at the time they committed an act, and should not be regarded the same as people who are mentally competent and are aware of what they are doing and can be held responsible.

Insanity is not something in the DSM (psychology) Mental illness is not the same as criminal insanity. Criminal insanity is something that is defined by the criminal system. But how should it be defined?

TESTS FOR INSANITY

46:00
One of the first test was the M’Naughten Test and this was established by the british house of lords in 1843 and some of this is still in use in some states.

M’ Naughten Test not criminally responsible if a disease of the mind prevented person from knowing the nature and the quality of the act or that the act was wrong.

a) The nature + quality of the act OR
b) That the act was wrong

If there was disease in the mind that prevented a person from knowing the nature and quality of the act, so what is it that they are doing? Maybe they don’t understand the nature that they’re doing it.
Somehow for them to not be criminally guilty, the had a disease in the mind that prevented them from knowing either the nature or quality of the act or from knowing that the act was wrong.
So the question here is how do we know if the person has a disease in the mind? We can’t stick a thermometer in a persons head and figure it out.
Another issue that was raised concerned the issue of knowing. So It maybe the case for crazy people, that they know something cognitive or intellectually but they that don’t fully get it emotionally in some psychological sense. So abstract cognition here this question knowing saying not quite capture what the problem is in cases of certain kinds of mental illness. It’s not just that they didn’t know that the act was wrong but maybe they knew it was wrong but they were so mentally disturbed that somehow something else was preventing them from acting in a way that they could bring their action under control.

49:48
Irresistible Impulse Test:

The irresistible impulse test, basically says that a person is not criminally responsible if they meet the M’Naughten test or if they couldn’t control what they were doing basically. So the supreme court of Mexico laid it out this way: The person loss his power of will.

52:26
Durham Test: Not responsible if unlawful act was result of mental defect or mental disease.

Rather than focusing on meeting the first criteria of M’Naughten test or having this focus on immediacy of they could control their action in that very moment, the Durham test was proposed In attempt to simplify things a bit. According to this test, an accuse is not criminally responsible if his unlawful act was the product of mental disease or mental defect. So this is a much simpler way of defining insanity.
It simply says a person is not responsible if their action was a result of some mental defect or mental disease.
So what the durham way of understanding insanity did was it actually put things back to medical professionals. So how do we know if someone’s act is a result of a mental disease or mental defect, What we need to bring in are doctors and psychiatrist. Then what would happen, the doc and psych would come in to the court room and juries would hear conflicting evidence whether someone was acting a way due to a disease of the mind. Shortly after the test was used, it was over turned in a US versus Bronner Decision 1972 basically taken off the books. What it was replaced was with the Model Penal code definition of insanity which kind of resembles the M naughten test.

54:34

This is the most reasonable way to defining insanity.
This test holds it that a person is not responsible for criminal conduct if at the time such conduct occurred their action was due to a mental disease or defect and they lacked substantial capacity to either appreciate the criminality of their conduct or to conform their conduct to their requirements of the law.

Model Penal Code- not responsible for criminal conduct if the time that they action was result of mental defect and this prevented them from appreciating the criminality of the crime or it prevented them from conforming.

Appreciated the criminality of act. OR
Conforming conduct to law

So does it differ from the M’Naughten defense. It’s very similar, it says that the person has a defect in the mind and his defect in the mind prevents them from appreciating the criminality or it prevents them from conforming their conduct.
One element that is worded differently.

58: 45

Week 06 Lecture 01
Monday October 1,2012
Morse, “Excusing the Crazy: The Insanity Defense Reconsidered” (522-526)

7:55 Review of Morris and Morse

All questions have been raised about the insanity defense. Such questions as: how do we define insanity?
Whether should we even allow this defense as a special defense. What does it mean for something to be a special defense?
So what Morris and Morse is divided on is whether we should allow for this special defense of insanity. What does that mean in what sense is insanity defense special?
So what happens when you plead insanity in a case, or when someone gets off by reason of insanity, what does that mean?
A) so they’re held but not responsible for their actions because they did not have control over them, in what sense is that special. What does it mean to say it’s a special defense? If we’re not holding them responsible well, what’s so special about that.
Remember when we talked about the criteria that needed to be met of different elements of a crime?
A) So there are 4 things that you needed to do to be guilty of a crime. One is you have to violate some already known law. 2nd, have committed the act and would have to commit it with a state of mind. 4th condition is that the defendant has neither an excuse nor a justification.
In what sense is insanity special? Well expect to be special even if you met the other criteria. There is something mentally wrong with you that meant that you should be excused because you were insane at the time wen you committed the crime.
Ex) batman theater shooting, So was he insane when he shot and killed a bunch of people and wounded many others in the theaher? But of he is allowed to plead insane he could be put in a mental institution, instead of being put in prision for the rest of his life.

13:36 Possible Reasons for Insanity defense

Morris
Morse

Morris argues that we should get rid of the special defense of insanity.
And he says there are different reasons that could be offered in favor of the insanity defense.

There are a couple of possible reasons:

1) There are some people who are in fact criminally insane at the time they committed the act but they’re not anymore but yet lock them up and put them in a mental institution to keep them off the streets. So Expediency and crime control. (no one really uses this reason for keeping the insanity defense)
The real reason that most people are in favor of the insanity defense favorite is this moral reason. And this is the reason Morse offers        ---------------

15:12
Moral reason:
We think someone is really suffering, they’re crazy, delusions, serious mental disorders.

What are some objections to the Insanity offense raised by Morris or raised by anyone.

24:00
The specific issue between Morris and Morse focuses on impart of this idea of causality.

Morris: Social adversity
Many crimes are caused by social adversity: things like having a bad up bringing. Yet we don’t allow that as an excuse for a crime. We don’t allow that as an excuse for a crime. We don’t allow people to get off of a crime and be not guilty because they suffered growing up.
Many people who commit violent acts or engage in various kinds of violence many of them not all but some of them were abused as children. Do we say, “well they were abused as a child therefore do we let them off.” NO we don’t say that

25:20 In page 520 In Morris’s essay 2nd middle of 2nd column. He’s making this claim that he believes can be supported imperically that social adversity is actually the cost of more crimes than mental disorder. So what does he make of this. How does he use this in his argument? Do you agree that social adversity cause people to go out and commit crime.

27:34 Reductio ad absurdem

32:10 523 2nd paragraph

In response Morse argues in direct response to Morris that this is the 2nd paragraph.
“the moral bases of the insanity defense is there is no just punishment without desert and no desert without responsibility. Responsibility is in turn based on minimal cognitive and volitional confidence.

This idea of responsibility rests on 2 factors, and he explains each of these factors the first being:

MORSE responsibility requires:

1) Rationality: are the actors goals sensible, is there some reason for why the actor is taking the action are there sensible goals involved. And are the means the actor uses to try to achieve those goals are those logical ones. By doing one thing will I achieve this etc.
2) Is the actor under compulsion to do something: pg 523, “we can define compulsion as hard choices that society cannot ask hard defendants to make at their peril. Ex) man drives in a free way, children crossing, and the only way to avoid killing the children is to swerve driving off the cliff killing himself.
Well you can think the right thing to do is drive off a cliff and die and save the 2 children. Yet no society, would expect that someone would put themselves in that kind of harm. We can’t say that they have to do that. So that’s an example that there is a lot of compulsion involved.
What about if I ingested a drug, say I take a hallucinogen and I kill someone. Yess you are responsible because I choose to take the drug.
What if I was in a bar and someone spikes my drink and I’m out of my mind and don’t remember anything and don’t know what I’m doing. In that case the argument can certainly be made that I am acting out of compulsion because I didn’t choose or even knowingly ingest the drug that made me crazy. It’s a pretty clear cut kind of thing.

For Social Adversity what would Morris say:

40:46 Punishment and Responsibility
Punishment and Responsibility (528-531)

What justifies punishment
Why is the state entitled to punish people.
What’s the principle in which we punish people.
What’s the principle by which we punish people.
How much do we punish them
How do decide to punish them

There are two ways of generally looking at punishment:
1) The forward Looking approach.
2) Backward looking approach.

42:35 49:00

(Utilitarianism) Forward Looking
(Deontology) Backward Looking 49.20
Says we are punishing people because we are looking towards the future and that we want to stop other crimes from happening in the future. So why did we punish someone? We punish them to deter them from acting again.

Deterrence

Specific: focusing on the specific criminal actor, we want that person not to commit the crime again so we put them in jail or put them to death.

General: the way we deter other people by making an example of someone that commits a crime. So you commit a crime, we put you to jail in part to deter you but also to deter the general population to commit the crime.

Deter may not work because
The punishment may not be severe enough.

Another forward-looking idea is Rehabilitation.
Why would they do something wrong. They need to be rehabilitated.

Retribution

We should punish someone because of what they did! Not because what they might do in the future or not because what others might do in the future, not the consequences. They did something wrong, therefore they must be punished.
Ex) eye for an eye tooth for an tooth. We need to acknowledge they committed a crime and punish them.

In the essay that you read by Michael Moore:
He argues that of these 2 theories Retributive and forward looking . only one of them makes sense and that we can’t combine them.
The question he looks at why do we punish? Do we look at the consequences that come about or is it because we think the criminal deserves it.

What Moore does is he goes through these various arguments and he gives us these counter examples and thought experiments and tries to prove that any reason for punishing that emphasizes the consequences is not a good reason.

You can think back about the omelas and the bakers and the black smith example.

57:30 Moore What Moore does is that he looks at these thought experiments that serve to prompt us to think about our intuitions about why we punish and he is going to argue about a mixed theory.
Argues against- utilitarianism theory and against “mixed theory” Punishment is justified iff (if and only if) it achieves a negative social gain and the offender deserves it.

So the Utilitarian would say that we punish someone if and only if punishing them will bring about a net social gain. In contrast to that, a retributive theory says we punish someone if and only if they deserve the punishment. So net social gain  Utilitarian. That’s why we punish we punish people, vs someone deserves punishment and that’s why we punish them, that’s why a mixed theory combines them. So a mixed theory combines these two and holds that a punishment is justified if and only if it achieves a net social gain and it’s given to offenders that deserve it.

Iif (If and only if) so these conditions are suppose to be both necessary and sufficient so the mixed theory holds that punishment is justified if and only if it achieves a net social gain.

According to the mixed theory you need these both things, it has to be that the punishment achieves net social gain and the person we punish deserves the punishment.

So he says this theory is not justified.

Scapegoating:

So the thought experiment, what if we could find someone that looked like the skyjacker and punish them even though he didn’t do anything wrong. So he goes through this utilitarian argument and shows that in this case it seems like punishment should be meeted out according to the utilitarian if it would create a better net social gain, and people would not engage in this crime if people saw that the person who did it was punished really seriously. We would have a net benefit to punish this innocent person but he says this isn’t what our intuition tells us whats right So he’s argument is laid out on page 560 at the bottom.

Preventive Detention:

Strict utilitarian, doesn’t matter who is being punished all it matters is the outcome of it.
Ex) dangerous patient. Should you punish them because of their capability of doing wrong, even though they haven’t done it yet.

Moore thinks Mixed theory is not fine:

Ex)
State vs. Cheney

A man was found guilty for theft and rape, violence against women. Was punished by the judge and the judge gave him to the most lenient punishment and I think It was related to his being in the military service. Sent him back to the military and he’s a good guy.

What if it was the case this criminal who raped and abused someone and stole money from her. What if it was the case, prior to being punished he got in an accident that made him incapable of ever raping anyone again. Moreover lets say he inherited a lot of money where he no longer had any reason to engage in theft. Let’s say that the criminal will never act again in the ways he did. And lets say we can pretend to punish him so other people would think he is being punished. HOW WOULD THE MIXED THEORY HANDLE THIS VIEW?
That punishment is justified if and only if it achieves net social gain and the offender deserves it. So one question is, does he deserves to be punished? YES. Would he be punished in the mixed theory?

In this case punishing him would not get a net social gain.
Third premise (our intuition) punishment should be inflicted, and yet if we follow the mixed theory it says it should not be. This leads us to number 4, the conclusion which is contradictory. So because this is contradictory, we need to go back and look at the premise.
So which premise does moore think we need to give up?
A) I say the mixed theory, the only reason we punish people is retributivism. ARE YOU CONVINCED?

EXAM 1 Review Session

Sources of Law

Constitution Law
Judicial Law
Administrative Law

Types of Law

Substantive Law:
Civil Law
Criminal Law

Procedural Law:

Utilitarianism

We enact laws so that the greatest number of people can be benefited

“Consequentialism”

Intent

Know that names that corresponds with the theories

Know the cases and the Judges

What was the point of the Omelas and the Bakers

If one person committed a crime it doesn’t who is punished as long as we punish someone.

Deontology- Kant

Categorical imperative

Always treat humans as means not an end.

Nuremberg Trials: More memorization

29:57 Expost Factos.

True or false Wyzanski,

37:00 a preiori – something that you know without having experience. It’s something that you know. Ex) math, reasoning skills

a post preiori- Post experience. You know it after you experience the world. It’s learned through perception.
1:04:25 Criminal Law

Requirements of criminal Law

1. Voluntary acts
2. Means rea
3. Actus reus
4. No excuse

Group authors that are in certain debates

about the remarkable Philosophical aspects of Law and it’s

The Death Penalty
Week 08 Lecture 01 van den Haag, “The Death Penalty Once More” (578-584)
Bedau, “A Reply to van den Haag” (584-592)
“Gregg v. Georgia” (623-627)

Week 08 Lecture 02

Van den Haag, “The Death Penalty Once More” (578-584)

In specifically the argument that Van den Haag makes in favor of maintaining the death penalty and Bedau’s responses to those various arguments and there are 3 general catagories or areas that Van Den Haag discusses in his essays and Bedau response to and these corresponds to the first question is the death penalty constitutional?

Is the Death Penalty Constitutional?

Van den Haag’s interpretation:

Bedaubs argument:

We talked about a number of different questions that fall under this category, whether the death penalty is constitutional and Van den Haag and Bedau had different interpretation of this.
So remember Van den Haag claims that yes it’s constitutional because the constitution authorizes the death penalty and It seems undeniable but the framers in fact thought that putting people to death for committing a crime was an option.
What Bedau argues is that in fact we have evolving standards and some crimes that were thought to be acceptable at the time of the constitution was written are no longer acceptable in our society and more over there are various ways that the death penalty In it’s actual functioning deprives people of rights that we think that everyone should be guaranteed. So rights to do process, the right against cruel and unusual punishment. So they have different interpretations of what that means so there is some disagreement about each of these.
So the first is the death penalty constitutional we talked about that.
Second question which we also talk about and we’ll continue to pursue today in the readings about the “McCleskey v. Kemp” (592-595) and the reading by Kennedy, “Homicide, Race and Capital Punishment” (596-602) that goes over these same questions. And that is the death penalty discriminatory?

Is the Death Penalty Discriminatory?

Second question which we also talk about and we’ll continue to pursue today in the readings about the “McCleskey v. Kemp” (592-595) and the reading by Kennedy, “Homicide, Race and Capital Punishment” (596-602) that goes over these same questions. And that is the death penalty discriminatory?
Now when Van den Haag looks at this question is the death penalty discriminatory what does he say about this? Remember, he is defending the death penalty, does he think the death penalty is discriminatory?
So Van den Haag says, yes actually in the past in fact has been discriminatory, it’s still discriminatory to some extent but that’s because of how it’s applied.
And “Student” is suggesting that Van den Haag claims if the problem is one of application, how it’s applied that doesn’t mean it should get rid of the death penalty, that means we should administer it In a way that’s not discriminatory.
More over he says, the evidence on how we discriminate is clearest in terms of whom? Actually there isn’t really whom, actually there’s not really disagreement about who is the death penalty most discriminatory towards?
“Student: discriminatory towards the victims, so what the statistics show is that there is actually some racially disparity to both in terms of the defendant; the race of the defendant. The victim; the race of the victim. “We’ll talk about this in the Baldus study” which happen after this article.
Van den Haag admits though it ok yes it is discriminatory. But it’s most discriminatory in terms of the person who was killed (the murder victim). If the murder victim is white, the person who killed (the murderer) is a lot more likely to be sentenced to death than if the victim was black.
So what this says to show is that our society takes more seriously the killing of white people than it does in the killing of black people.
So what do we do with that I think this is where a lot of the question lyes between Van den Haag and Bedau and proponents and opponents of the death penalty.
If the system is working in a discriminatory way, what does that mean? What should be done about? Is there a way to fix that is another question? We’ll talk more about that with the subsequent essays.

VAN DEN HAAG

I wanted to mention again, the point I ended class with, and that is this distinction that Van den Haag draws between equality and justice:

Note distinction between  equality  Justice

So there are these two different ideals, we tend to think they are both important. We believe in equality and we believe in justice.
Van de Haag does not think these two are the same and that we need to understand how they are different and we need to understand that one of them is actually more important then the other.
If we can have both equality and justice, justice is the more important goal.

EQUALITY for Van Den HAAG

is matter of treating like pieces alike. It’s a principle of saying this, “Justice is a matter of giving each individual what they’re due”
So he explains at pg. 580. Having noted the difference between these two concepts: Since it’s never possible to punish equally all equality guilty murderers, we should punish as they deserve as many as those as we apprehend and convict as possible, thus even if the death penalty were inherently discriminatory which is not the case but deserve by those that receive it, it would be morally just to impose it on them. So what he is saying is if the death penalty can enable us to bring about justice to at least some of the people who commit murders and deserve to die, that’s better than putting to death non of the people who deserve to die if we just say ok because there is this discrimination and application we can’t put anybody to death that would be the case of equal in justice it’s better to not be totally equal but at least give justice to some of the people who deserve it (even though we may sometimes mistakenly give people the death penalty, it’s ok because within that group we got those who are actually guilty).

11:19 so how does Bedau response to this argument? What would be a response to Van de Haag’s argument?

Certain people are getting justice and others are not.
Student, “We should prosecute them differently”
What about sysems that is not functioning, should we just get rid of them? No

Miscarriages of Justice (“Mistakes”)

This refers to the mistakes, when a person is wrongfully put to death.
So what happens when someone is put to death by mistake? No Van De Haag acknowledges that mistakes happen and this is where he asks us the analogy to trucking.
So his claim is ok Trucking is an industry its in service of many industry the government had no put an end to driving. There are a lot of accidents. Mistakes happen. Do we say we should band trucks. More people die from trucking accidents then the death penalty.
So there elements of discrimination where a trucker say “I’m gonna go, I’m gonna have a car crash today and im going to be sure that minority person is killed.
If you kill someone and say the trucker was negligent, ran someone down while texting. They will be charged more seriously than if it was an accident that was due to road conditions that came randomly out of the blue and the trucker was doing everything possible.
So I think what Bedau would say is, Justice needs to be served but there are other ways than the death penalty, like life imprisonment is an adequate punishment according to Bedau.
So there is this distinction that bedau makes anyway that the state purposely takes someone’s life and a mistake that happens.
So if these problems of racism are in the system it’s probably not just the death penalty where we are going to find it, it’s probably also happening in the prosecution of other crimes. So things like racial profiling in terms of drivers getting pulled over and then gets charged with various things. The cop notices a marijuana is in the car, that is less likely to happen to a white driver who doesn’t get pulled over.
So what happens when we kill innocent people?
Van den Haag says that killing an innocent person is regrettable but, allowing killers and murderers to go free could lead to additional murders of more innocent people.
In lite of these problems how could someone still say that they are for the death penalty. Van Den Haag acknowledges this but he thinks having the death penalty is still achieving a purpose. So what is the purpose of the death penalty, So I guess that’s one question for proponents. So how does Van den Haag apply here?
So the deterance issue is one question, he thinks even if it wasn’t a deterent that there is still arguments for it but as Bedau claims he does assume it deters some people and he gives us some reasons why the death penalty deters people. He admits the evidence for about whether.
So the question whether they are having a death penalty deters people from committing crimes as oppose to life imprisonment as a possible penalty.
I do think there seems to be more evidence than the reverse that the deterrent affects of the death penalty are questionable. So most folks that support the death penalty don’t think it’s simply because it’s the best deterrent.
But Van Den Haag thinks we have reasons for thinking it is a good deterrent and that is that everybody fears death and he makes this point at pg 582.
There is some intuitive appeal to this idea that people do fear death more than anything else.

41:50
Morality

This is where the point about the state putting people to death is just not something the state should be doing, it’s wrong for the state to be playing the role of god, who should live or who should die.
Arguments about the sanctity of life come up here or treating people with dignity.
What Van Den Haag notes, many abolitionist (people who are against the death penalty) think that this is just not something the state should be doing. It’s immoral for the state to purposely take the lives of its citizens.

“Gregg v. Georgia” (623-627)

It was decided in 1976.
Remember we talked about the Fermin decision of 1972. Interestingly these two supreme court cases and The McCleskey v. Kemp case were all in the state of Georgia
So the Gregg decision in 1976 allowed states implement the death penalty again after 4 years was said, the way the death penalty is functioning is no longer arbitrary capricious in terms of racial discrimination and as long as states have these safe guards in place they can have the death penalty. So it reverse certain aspects of Fermin, but it did hold that the death penalty had to be administered with certain restrictions.

44:00 “McCleskey v. Kemp” (592-595)

This was a 1987 case.
This was a supreme court case also in the state of Georgia that involved a robbery where a black man Warren McCleskey was convicted of murdering a white police officer during a robbery of a furniture store. So the Jury convicted him and recommended that he receive the death penalty.
Since there were two aggravating factors, in this case.
Remember after the Greg vs Georgia decision it was said, we need guidelines and the death penalty can only be imposed if certain aggravating factors are present and some mitigating factors are not present.
1) so specifically the murder was committed during an arm robbery.
2) And second it involved a murder of a police officer.
So because of these two factors McClesky was seen as a good candidate for the death penalty.
Now McClesky and his attorneys object into the sentence of death and in their objections they use evidence from the “Baldus Study”
So David Baldus did a very sweeping statistical study of a death penalty cases in Georgia
He looked at 2000 murder cases in the 1970s committed in Georgia and he came up with all these statistics with race of the defendant and the race of the victim.
So defendant charged with killing a white person received the death penalty 11% of the cases
And those convicted killing a black person received the death penalty in 1% of murders.
In terms of the race of the defendant, 4% of black defendants receive death penalty vs. 7% of white defendants.
So again there is a discrepancy both the terms of the race of the victim and the race of the defendant but it’s greater in terms of the race of the defendant.
Looking at the combine factors, the death penalty is imposed in 22 percent of the cases involving black defendants and white victims
8 % of cases involving white defendants and white victims
1% involving black defendants and black victims
3% involving white defendants and black victims.
He also looked at statistics about when the prosecutor sought the death penalty: 70% of cases involving black defendants and white victims involve the prosecutors seeking the death penalty in contrast to 19 % with the reverse white defendents and white victims.
He also looked a bunch of variables. 200 other variables that were present. That could have explained disparity of non racial grounds.
In one model he discovers that even after taking account of 39 non racial variables the defendants charge with killing a white victim were 4.3 times as likely to receive a death sentence as defendants charge with killing blacks.
And that black defendants were 1.1 more times likely than white defendants to receive the death sentence. After controlling for all these factors. Including things like age, level of education, criminal record, method of killing, motive, strength of evidence
The Baldus case was accepted for arguendo, for the sake of argument.

Week 09 Lecture 01

Grutter
Nagel
Steel
Parents v Seattle
Skip ANDERSON

McCleskey v. Kemp” (592-595)

His argument that he didn’t deserve the death penalty was base on his claim that somebody purposely and intentionally discriminated against him in a racist manner, no. Rather it was based on looking at statistics showing that the death penalty in Georgia, that it functioned that had discriminatory affects and specifically that discriminates he argued statistically that you can see that there is racial difference in the ways people who are black defendants are treated and more importantly the way they are treated when the victim was white.
So McClesky was black and he killed a white police officer.
He argued looking at the statistics he has a much greater chance of being sentenced to death then if he had been white and if his victims had been black.
So he said this isn’t fair. This is an example of racist functioning in law.
The court looks at this and says, even if we accept the Baldus study arguedo, for the sake of argument, even if we say that this evidence is right but the study is correct in it’s findings it’s still not a reason to throw out the death penalty
Again a reason for that is offered by the supreme court, to be discriminatory the death penalty has to be implemented in way that shows purposeful. And McClesky can’t show that any particular individual or any specific thing about his case was an example of racism, even though statistically it is a function in a racist manner.
I’m curious to know what you made out of this argument?
Do you think it is legitimate to use the results of a study, like statistics, to show that there is racism going on and we can’t employ the death penalty in such cases.?
Arguments considered by the court says, so one point that was made, I think it was Justice Powel who wrote the majority decision. He notes that this could open up a pandoras box of other litigation, that if we allow people to use statisitcs int his kind of way, we could show that there were in ways that are racist or sexist or discriminatory. An therefoe we should just throw them all out. And he worrys about this.
One issue is statistics can be used in various different ways, in the mix of the presidential debate. We have Fat Checkers, checking up on many of the things that are uttered during the debate but certainly we hear that studies show that one thing and the opposite thing.
But even we accept the study as being legitimate there is still worry here, that we are using statistics to prove something that we don’t specifically can’t point to where it’s being operating in this case.

Kennedy, “Homicide, Race and Capital Punishment” (596-602)

What does Kennedy say in response, So Kennedy writes this essay!
He think strategies open to the court if they accept his findings.
But he specifically talks about this worry about opening a pandoras box and he says it appears that the court is afraid of too much justice.
So he claims that if it was the case that we could use statistics to show that a number of institutions to society are operating in ways that are racist or perhaps ways that are racist, sexist or problematic for some reasons. Then the argument if that happen we have to change a lot about society, well maybe there is a lot about society that needs to change.
So if we could show that maybe we could change a lot of things.
Another Point that Powel mentions is that death penalty the way its being being used, demands that people be allowed to certain kind of discretion and he says that we need proof that is more explicitly tied to McClesky’s case before we throw out the death penalty against him. So he says on pg 594.
In response to this point Kennedy talks about the Fermin decision (the first case the supreme court argued that the death penalty needed to be put to a halt because it wasn’t being implemented in a fair way, because there was a lot of discretion and this was allowing racism to enter.
The idea in McClesky’s lawyer and certainly Kennedy. The idea is not that it should continue clog the courts cause the Supreme Court should rule the death penalty is unconstitutional because it can’t be administered in a way that is racist.
What reason for that, that there is some claim that the death penalty is different? Why because it involves scape putting people to death.
If we fond there was statistical evidence of racism in some other penalty that was meeted out it wouldn’t be as serious as weeding out the death penalty. Because once you take someone’s life you can’t reverse the decision, if it’s later found “ oh here exatly where the racism came into play” we can’t go back and make corrections. In some sense it was said the death penalty is a serious penalty so we need to be careful and also be sensitive to it with racism in particular. Racism in this country.
Van den Haag would say, we need to look at each individual case and bring justice to that person. And so if in McClesky’s case is owed is justice, if it’s just to take his life we should just take his life, maybe there is racism operating in the system that doesn’t infect his case. What Kennedy says in response to that is that there cases of racism that there is no individual intention or awareness that the person is being racist. Some people are just implicitly racist.

Kennedy, “Homicide, Race and Capital Punishment” (596-602)

Moving away from the McClesky v. Kemp case, to Kennedys examination of it.
He takes up this question about the McClesky v Kemp.
He says, “what would happen if the supreme court accepted baldus’s finding that the death penalty violated equal protections clause had to be

Kennedy what if Sup Ct found accepted Baldus finding that death penalty violated equal protections clause had to be reformed

Abolish the death penalty

One thing that would follow from this is getting rid of the death penalty.
However proponents of the death penalty find that this option is too extreme.

Limit death penalty to most aggravated crimes

So can limit it to the most aggravated crime But people could point out that it’s still likely to be too whatever problems are causing the racism in the way it’s being applied now. Even if we limited it to the most aggravated punishment. Why would it change the problem of racism

Reinstate mandatory death penalty.

but again If we reinstate mandatory death penalty. For certain times and allow less discretion in the sentencing process. There would still be issue that if we are going to decide who is guilty of a certain crime that has a mandatory death penalty associated with it, there could racism offering.

Level up strategy

Finally what Kennedy raises is the level up strategy.
This a strategy where the court could have said, if they found that the equal protections clause being violated by the death penalty, it could have said lets level up.
Instead of putting more blacks who kill whites to death, we need to equalize things so why don’t instead of saying. Get rid of the death penalty and don’t execute those guilty blacks who kill whites. Why don’t we specifically aim to execute more whites then blacks if you think the death penalty an unjust sentence. Why not making things more equal. Like a reverse affirmative action. Where white people are subjected to stronger penalties
He uses the street light analogy: In a town where the street lights are broken, we don’t reduce to darkness the rest of the town by saying lets make it equal, get rid of all the street lights so the whole town goes dark, rather what we say is fix those street ligts that aren’t working so why is it that the decision that was made here didn’t decide to start implementing more death penalties against white people or people that kill more blacks.
So why does Kennedy raise this question, is this a good idea?
Kennedy Is bringing up this example of level up strategy to say look this follows from the argument that they could have done this.
If you think the death penalty is working in a racist way which the court acknowledge in the Baldus study were it was a good study. They said.
One thing you can do is be fair and executing more white people because it’s clear that they are not being put to death at the same numbers of black people.
Kennedy thinks it’s going to strike people especially when death is the penalty as really extreme, and really problematic. So what he says well given the way that these statistics show that there is racist and implementation. What we simply need to do is get rid of the death penalty.
EQUALITY AND THE LAW

BRIEF OVERVIEW OF EQUALITY

Equality – relational

To say that equality is relational, you can’t talk about a person being equal in of itself, you have to talk about them being equal to another person or one group equal to another group.
And equal to them in a certain respect.
So am I equal to you.
You are always comparing some specific variable to one group to another group.

If Shelly & Raymond are equal with respect to X, they deserve equal Y

If they are equal then they deserve the same equal things in respects to one another.
Shelly and Raymond put in equal effort on their exam, then they deserve equal grades.
Is that typically how we think of how things work on exams?
No unfortunately not!
We measure on how well you did.
So it matter how we plug In these various variables
Most philosophers believe equality is good.

Racism: 3 axes of disagreement
Individual or group harm?

Whether racism is an individual harm that focuses on harming individuals

Racism exist when an individual suffers from it.
So something like racist lynching would be bad because a person being lynched or killed and not made worst by the fact that. It was a racist lynching. But the racism is directed at the individual.

Or whether it’s a group harm. Where you can talk about groups of people being harmed by racism

Members of the group being targeted are all suffering; they are all affected when a racist harm occurs.
So an example of this is when someone utters an insult to someone else.
The claim of racism is a group harm would be that actually. All people of that group are being harmed not just the individual to whom their remark is targeted.
So when I hear an anti semetic mark to someone else, and I over hear this, I might feel harm by that because as a Jew I think this person hates jews and is saying a really derogatory thing and I might suffer from that.
Groups as groups can suffer from racism even though individuals are not being targeted.

Week 10 Lecture 01

“Barbara Grutter v. Lee Bollinger, et al” (374-383)

49:50

Barbera was applying to the university of Michigan law school and she similar prior objective criteria then some of the other sutdents but did not get in, she was white.
This was an instance of constitutionality. This is because the state has compel interest in constitutionality and the admission program made sure that the use of race was narrowly tailored to fit that interest. In other words, the court claimed that there were no quotas system in place. Which would only account for race.
They mirrored criteria that set in the prescedence of the baci case.
They ruled in favor of UofM.
They have this descenting opinion by Justice Thomas.
Thomas argued that it was not constitutional after all. This didn’t have any effect in the ruling, but just incorporating in the text.
1) So his main reason for saying this was he believed that it sets up students for failure (some minority stdents). Often times in admissions takes race as a factor. Admit students that are ill prepared for the program. they are set up for failure.
2) It functions to alleviate white guilt. More specifically. UofM is not interested in diversity after all, it is actually interested in maintaining what he calls a racial esthetic rather than a real interest in diversity. What is racial estatic? Its like painting a picture that we are a really diverse program when actually they are not interested in the success in the students, just wants to make it look like they are diverse
3) It stigmatizes underrepresented minority. So some people are going to think that any black person on campus is only there because of the admissions policy. Even though plenty of those people are there because they deserve it. They are going to question it!

Whats another he gives unconstitutionalty to the ruling?
He says that heterogeneous environement actually impairs black student learning. We need diversity to learn, he is actually arguing that recent statistics show that black people don’t work well in extremely diverse classroom settings.

Nagel, “A Defense of Affirmative Action” (383-386)

Nagel’s examination of Affirmative action.
And he’s not talking about any specific cases here and he’s talking more about it generally.
He wrote this essay in 1981 so its dated in someway.

Weak Affirmative Action: Efforts to ensure equal Opp. For minorities

Efforts to ensure equal opportunity for members of under represented groups that are have been historically subject to discrimination.
Though technically women often are included in affirmative action policies even though they are not minorities.

Ex) we’re not going as so far as getting a definite advantage but your doing things that increase equal opportunity. What might those things look like?

Get kids more interested in college.
Going to schools in neighborhoods of schools that are not wealthy.
Things like advertising jobs. These increase opportunities

Strong Affirmative Action: Definite Preference for minorities

Strong affirmative actions goes beyond that and giving a definite preference to minorities
Ex) if you have to candidates for a job and they’re both qualified and one of them is a minority and the other is not. Giving a preference to the other is strong affirmative action.
When you 2 equally qualified. But the minority person should get the job.

WHAT DOES NAGEL THINK ABOUT THIS, WHAT IS HE ARGUING ABOUT THE IN THE ESSAY?

He says yes, we need both kinds of affirmative action right now but. The strong kind takes a much stronger justification.
He doesn’t think we need strong affirmative action for all under represented groups. Only for one particular group? AFRICAN AMERICANS
If we look at all minority groups, African Americans have suffered the most. From times of slavery, Jim Crow Laws, Blacks are the group in our country that deserve for now a strong affirmative action

NAGEL’s Worries on Strong Affirmative action?

Common Objections:

1) Argument that it’s inefficient.

- Lest serious out of all the objections

2) Argument that It’s unfair

a bit more serious than the first
Is simply that it’s unfair
Some claim ( bruner and grast in the cases against u of m). that they are not being treated fairly if they are white, from a privilege background and are not being regarded the same as if they were from another race.
Well he says it may be unfair in certain ways but its not unfair in the same way that racist discrimination is unfair so there is a difference according to Nagel that these are unfair.
The argument here is, affirmative action is unfair in an attempt achieve a certain society that is actually is fair, and it doesn’t employ various forms of racisim to decide who gets jobs and who gets benefits in society.
So he thinks this is a good objection but that its out wweigh by the need for equality and the need to work towards a fair society .
He says the goal here is to reduce the great social in justice of racial stratification, its not to create a society that is exactly proportional in every corporate room classroom. Whats important is to remedy social injustice of racism.

3) Affirmative action, it damages the self-esteem that benefits from it.

His third objection very much echos that Shelby steel made that strong affirmative action damages the self esteem of its beneficiaries. Nagel sees this is a problem but the goal to achieve is worth the risk that this may happen and overtime affirmative action will bring about benefits.

Steele, “Affirmative Action” (386-391)

57:17
A diversity is something that replies to

Very similar to justice Thomas’ argument against affirmative action

This idea of racial estatic in justice Thomas argument comes again. The term that Steele uses is Cosmetic Diversity but we can treat this as the same idea.
The term diversity actually corresponds to the amelioration of white guilt and the empowerment of blacks.
But diversity under affirmative action, is actually a cosmetic diversity. This is on page 388. So he says diversity applies to racist and culture rather the citizens.
Another way of saying that it deindividualizes people and treating people as numbers in certain social category and they do with the aim to create a cosmetic and false diversity.
Steele also argues that it doesn’t work because focusing on race is not the adequate solution, we should actually focus on the economically disadvantage.
It only helps privilege blacks. Regardless of race it does not help economically disadvantage people. White or black or anything else. We should focus on empowering the economically disadvantage rather than the racially underrepresented.

Blacks will never know why they are here.
Suffering cannot be repaid (suffering of blacks as slaves and all throughout history, its offensive, like affirmative action amelriate this, it only makes white feels better )

“Parents Involved in Community Schools v. Seattle School District” (347-354)

These cases involved two school districts.
School districts were doig something to address racial segregation in their school. No longer the case people of colored can be.
SO these 2 distcts were somehow different.
So In Seattle, incoming 9th graders, they ranked the schools they wanted to attend and after everyone ranked their school. There were a series of tie breakers that was instituted in a certain quarter.
Already had a sibling that went to that school
The second tie breaker test had to do with race
So the schools in seattle were 41% white
And 59% were non white.
So over subscribed not within 10 percentage points of the districts overall white and non white.
Know seattle was not sefret
They were worried if nothing is done, they woudld.
So the supreme court looked at both of these cases togehetra at 2007.
They looked at whether these schools could choose to classify students by race and rely upon that classification in making school assignments
The court decided that, they were not allowed to do this. Why is it not fair?
It’s not fair because race seems to be the determining factor that you are using race to decide could be admitted or not.
In what sense does a racial classification have to be operating ?
Ex) so you could say, racial classification were being used to classify race (since 1920s)
Steering black people in certain neighborhoods and others

Sex, Gender, and Equality
34:36

US v Virginia- dealing with sex
Giving women certain rights and privelages
Some laws treat women to men because they are different. Like maternity leave.
Totally cutting off Materinity leave so now everyone is equal does not justify equality.
This would not be treating women unfairly towards men. Women are loosing out on this.

40:00

Standards of review

So issue here is when you have a category that you are using that the law makes use of, some kind of classification, certain kinds of classification are seen as suspect. So if you are going to use race or sex or sexual orientation there is a question, well, when is It ok to use these categories and when is it not ok? There are 3 different standards of review

Rational scrutiny:

Looks at the purpose of classification, is there is valid purpose to using a sex base or race base classification
Easiest level to achieve.
Govt. policy must rationally relate to a legitimate state interest.
There has to be some rational relationship between the policy and some interest to the state that the government has that seems to be legitimate.

Intermediate scrutiny:

Looking at the means in which the law tries to achieve
Substantially related to an important interest
Government policy must be substantially related to an important state interest.
Sex discrimination cases tends to be held to this standard.

Strict Scrutiny:

Necessary to achieve a compelling state interest.

Racial seems to be held at this level.

48 :30
REED v. REED 1971 U.S Supreme Court Rational Scrutiny

Different rights to men is a violation to the constitution. Especially in administering wills.

Sally Reed challenged the law when her adopted son died due to suicide.
Wanted to administer the estate of the son. The state automatically gave the son’s estate to the father (es husband) oppose to Sally. This was blantely sex discrimination.
This does not meet the standards.

CRAIG v. Boren Intermediate Scrutiny

Boys engage more in drunk driving than girls.
Classification by gender
The state tried to argue in favor of this law by saying that statistics about drunk driving shows boys were at a greater risk than girls.
The court ruled that government classification by gender must serve an important government objective and must be substantially related to that.

.

FRONTERO v. RICHARDSON Strict Scrutiny

If a military men has a wife, it is assumed that the wife is dependent on him. It’s vice versa with men, as the husband had to prove dependence to the husband.

involves that a spouse of a military member was dependent on health benefit.

EXAM 02 REVIEW

The Death Penalty

Film: Deadline:

Van den Haag, “The Death Penalty Once More” (578-584)

Pro death penalty

3 different categories that support:
1) Is the death penalty more

Why the death penalty constitutional.

Why does he make distinction between equality and justice

Unequal justice is more important that injustice

Pg 581

Distinction between justice and equality?

Justice- punish what they deserve/desert. Correlate with retribution

Equality- People who the commit the same crime and receive the same kind of punishment

Is the death penalty more deterrent?

We all inherently fear death.

He says people in death row would rather have life imprisonment.

Is the death penalty moral?

To ways he offers it’s moral.

Bedau, “A Reply to Van den Haag (584-592)

“Gregg v. Georgia” (623-627)

Retribution is what supports death penalty
The punishment is disproportionate to the crime.

“McCleskey v. Kemp” (592- 595)
26:41

McCleskey was the defendant being charged for murder and was charged for murdering a cop.
The Baldas study- set of statistics
White who kill whites less likely to get death penalty
Whites who kill black less likely to receive death penalty.

Kennedy, “Homicide, Race and Capital Punishment” and Capital Punishment” (596- 602)

31:39

Kennedy wants to abolish it.

Level up strategy

Constitutional Equality, Affirmative Action, and Integration
42:22

“Barbara Grutter v. Lee Bollinger, et al” (374-383)

49:50

Barbera was applying to the university of Michigan law school and she similar prior objective criteria then some of the other sutdents but did not get in, she was black
This was an instance of constitutionality. This is because the state has compel interest in constitutionality and the admission program made sure that the use of race was narrowly tailored to fit that interest. In other words, the court claimed that there were no quotas system in place. Which would only account for race.
They mirrored criteria that set in the prescedence of the baci case.
They ruled in favor of UofM.
They have this descenting opinion by Justice Thomas.
Thomas argued that it was not constitutional after all. This didn’t have any effect in the ruling, but just incorporating in the text.
4) So his main reason for saying this was he believed that it sets up students for failure (some minority stdents). Often times in admissions takes race as a factor. Admit students that are ill prepared for the program. they are set up for failure.
5) It functions to alleviate white guilt. More specifically. UofM is not interested in diversity after all, it is actually interested in maintaining what he calls a racial esthetic rather than a real interest in diversity. What is racial estatic? Its like painting a picture that we are a really diverse program when actually they are not interested in the success in the students, just wants to make it look like they are diverse
6) It stigmatizes underrepresented minority. So some people are going to think that any black person on campus is only there because of the admissions policy. Even though plenty of those people are there because they deserve it. They are going to question it!

Whats another he gives unconstitutionalty to the ruling?
He says that heterogeneous environement actually impairs black student learning. We need diversity to learn, he is actually arguing that recent statistics show that black people don’t work well in extremely diverse classroom settings.

Nagel, “ A defense of Affirmative Action” (383- 386)

57:17

Steele, “Affirmative Action” (386-391)

57:17
A diversity is something that replies to

Very similar to justice Thomas’ argument against affirmative action

This idea of racial estatic in justice Thomas argument comes again. The term that Steele uses is Cosmetic Diversity but we can treat this as the same idea.
The term diversity actually corresponds to the amilreation of white guilt and the empowerment of blacks.
But diversity under affirmative action, is actually a cosmetic diversity. This is on page 388. So he says diversity applies to racist and culture rather the citizens.
Another way of saying that it individualizes people and treating people as numbers in certain social category and they do that to create a cosmetic and false diversity
Steele also argues that it doesn’t work because focusing on race is not the answer but maybe focusing on the economic disadvantage.
It only helps privilege blacks. Regardless of race it does not help.

“Parents Involved in Community Schools v. Seattle School District” (347-354)

Week 11 Lecture 01
Monday November 5, 2012
For Wednesday, Read
Michael H
Balkin
“In Re Marriage Cases

REVIEW:

Scrutiny: careful examination

What does it mean when we talk about Standard of Scrutiny?
A) The level of state interest.
There are two questions that come into play. 1 concern is there a state interest here that is at stake.
What does it mean though, what are we doing when we say what level of scrutiny should we use here? What is scrutiny as a word, outside of the legal context?
So if you’re looking over a project or you want to make sure something is really done right, that you are being really careful, you might say I gave that a high level of scrutiny, I gave that a high level of scrutiny. I scrutinize that and I made sure that it was right. So it’s some kind of careful examination.
So when we are talking about levels of scrutiny how carefully do we need to be sure that we are using this classification in a way that is appropriate? So the idea here is that it we have a kind of history of racism and sexism. So when we use the category of race and law we want to make sure we are looking carefully at what we are doing.

Rational Scrutiny- so the level of rational scrutiny which is the lowest level of scrutiny, that’s suppose to be met by any law. Why are we using this category or is there some reason to do so.
As we move up the line intermediate scrutiny and strict scrutiny we want a higher level of attention. So you need the greatest possible amount of scrutiny to use the category of race.

Intermediate level- To use the category of sex, you need an intermediate level. Why is race held to a higher level of scrutiny according to the level of the law then sex? Why do you think that is?
A) Nagel says we need strong affirmative action for race issues, specifically for blacks because there is so much racism, the history of our country suggest that black people have been more disadvantage than say women have historically. Another reason is that, if we look at male and female bodies or at least one of the arguments that was made. There are in fact differences between male and female bodies that are more objective than differences between races. There are not strict dividing lines between the races there is no white blood. Race is largely a social construction that we draw the boundaries of and somewhat arbitrary ways. Where as male and female bodies there is more of a physical distinction between the two.

You need the highest possible of scrutiny in regards of race.
In general there are some differences in male and female bodies, but that has been held to a less rigorous but still intermediate scrutiny. 8:00, So you still need a state interest of some sort and you need the appropriate level of tailoring of the law to achieve that.

Argument: difference in male and female bodies. That’s been held rigorous but has been held to intermediate scrutiny.

Sex, Gender, and Equality

“United States v. Virginia” (456-461)

8:35
United States v. Virginia involves the Virginia military institute or VMI. So the VMI from 1839-1996 admitted only men and it’s a publicly funded institution that emphasizes what they refer to as adversative training, so the adversative model of education.
What is the adversative model? So it is military style school where students lack privacy. There is punishment for students and torments so there is a bonding experience, like hazing.
It was argued by the VMI that admitting women in the VMI would compromise this kind of training,
Why would that be the case? Why did they say it was necessary to keep women out?
There were also arguments that the standards have to change, the physical standards. In what way those women may not be able to handle this. What were they worried about? So there two different ways of putting this.
1 women couldn’t take it so maybe someone would think they want it but when they get there they will realize that this is not the kind of learning environment that they are able to endure.
Another is, while women don’t want this kind adversative learning environment. It’s not the kind of environment that women are most interested in being in. is that true? So you could claim that, how many of you would like to go to college in a place where this is the style of learning. If you think about the military its often more appealing to men. But women are allowed in the military, at this point they are still restricted from some roles but that is changing.
So you could say that, some women would like to VMI that’s why they choose to enroll there and that’s why they would apply there and some men I would assume you are here and not In the military because you prefer the kind of environment that’s here on MSU.
So one argument that was being made was that some women want this.

In 1990 a female high school student applied to VMI and was denied of admissions and she sued the state of Virginia, charging that VMI violated equal protection clause, specifically the 14th amendment.
The original case (district Court) ruled in favor of VMI but then the case appealed and then the appeals court reversed this decision and said that VMI has 3 options:

Why was it necessary to keep women out of the military initiation process?

Appeals court in VMI said you have 3 options:

Options:

1) Admit Women
2) Set up Comparable program- so that you are allowing them to do something not VIA VMI but be in a comparable program else where in Virginia.
3) Give up state support- Or if you don’t want to do any of these options you can give up your state support, so it’s a publically funded institution. That’s what is in question here.

So at this point what did the VMI choose to do?
So they set up a comparable program, so the idea was it had to be comparable to women. It’s the option they picked. VWLI Virginia Women Leadership institute

How ever it was not really comparable in certain aspects, mainly this adversative method was not being employed. The plan was not to this method at VWIl.

The VMI compared to VMIL:

For a number of other differences as well between the VWLI and the VMI, for one VMI offered a number of possible degrees including science and engineering.

VWIL only offered liberal arts degrees. Faculty held fewer advance degrees and the amount of money available to the school was low and students were admitted with lower test scores.

Case again appealed to the supreme court:

So when this case was again appealed to the supreme court, the supreme court looked at VWLI and actually, this is not comparable,

It’s an institution for women but its not comparable to VMI so it does not meet the standards so at that point VMI did not wan t to give up its state support and so they decided to admit women.

Ok the reasons that were given by VMI by the state of Virginia for excluding women, that came out in the court case were interesting.

Quick Recap:

One argument that was made, is that single sex education provides important education benefits and contributes to diversity in this case not racial diversity but a diversity of kinds of education that are available. So some students can choose to go to a school much like this one other students can choose to go to an all male school that has this adversative training style, So there might be some students who drive here there might be other students who drive in the environment that VMI provides.

VMI arguments as to not allow women in the VMI

What they argue in conjunction to this, if its really about education diversity why not allow women to partake in them. Well this is where they claim,

1) if we admitted women we have to modify the training model that we use.
2) The argument here is in part that women don’t do well with this kind of training model.
3) Most of them don’t want it and most of them wouldn’t thrive in this kind of training model, because women tend to be more cooperative, more nurturing and do well in environments that are supportive rather then antagonistic.

Supreme Court Response:

In response to this, the Supreme and its majority ruling said” well what your claiming is that women just are this way and you are relying on stereotypes of women that have been used to keep women held back from society and even though most women may not want this kind of training some do and you need to give them that opportunity. So the majority again said VMI must admit women in the supreme court, the descenting opinion is also listed in your book page 459 in the middle of second column:

“ The virtue of a democratic system is that it readily enables the people overtime to be persuaded what they took for granted…….”
So the constitution does not talk about this model of training or about single sex education for men. Going on a bit about six or seven lines down he says, “The function of this court is to preserve our society’s values not to revise them…….”
Peoples’ values have change they should enact laws that change them not expect the court to say this is unacceptable. “To prevent back sliding from a degree of restrictions, the constitution impose them a democratic government not to prescribe on our own authority” So the court shouldn’t be engaged in legislating higher degrees of authority, whatever abstract testing they use to device they cannot precede ……….”

SCALIA against Supreme Court ruling.

What Scalia is saying here is that rule of the courts is not to be legislating on these sorts of matters. We should promote a kind of judicial restrains where we don’t use the courts to invalidate a practice or law that is rooted in the traditions of this country.

How does the court respond to that kind of argument?
A) So one might say, “well if we look at what the constitution says, it talks about equality. Think back to the time the constitution was written though you might note that, in fact women could not vote back then, basic kind of inequality that doesn’t exist now, blacks were not equal citizens and they could also vote. So do we interpret what was written back then in our current? And if we recognize that the ways we have interpret it in the past has change, what do we do about that?

How do we interpret the constitution and how do we interpret even what the law says. There are even theories about that, and Scalia is on one of the spectrum. So there is a question here if people are interested in or something that, say people believe is problem how do we go about addressing that. You bring it to the attention of the court or do you pass a law?
Actually, thinking about the ways that legislation and the law has preceded with respect to something like gay marriage which we will be talking about soon.

SCALIA’s 4 Points:

There are different strategies:
1) There are court rulings,
2) There are referendums
3) Ballot initiatives in states where the law can be changed and rechanged and we got a few states (3) where there is an issue on the ballot, about whether we either permit gay marriage or whether we change the constitution of a state to say that marriages between one man and one women and there are court cases also happening when these laws get passed or current court cases that the law is unconstitution.
So different strategies of addressing an issue, So I wanted to finish up this case and note a couple of things:

Supreme Courts Argument against VMI’s comparable institution:
The court argued that the diversity rational offered by Virginia, oh well this is a diverse form of education the court says that’s not acceptable rational in part because historically. If you look at systems of higher education when this was initiated it was not the case that it was one more way a diverse way to educate students. The single sex aspect of VMI was in fact in keeping with the single sex aspect of other public institutions of higher learning in Virginia. So I believe it was not until 1970 that public colleges like University of Virgina accepted Women. So there was a history of single sex education for men, it couldn’t be this diversity rational was one that was invoked when VMI was be gone.

It was also argued as I mentioned, that this adversative method of training could be chosen by some women and that separate barricks could be set up where the women would sleep and that you could deal with the practical aspects of how do we have these women students here, when the men have no privacy and let alone space. Well you can have a separate place where the women live and still use the same model of education.

32:10
Michael M. vs. Superior Court of Sonoma County
(US Sup Ct, 1981)

How it only applied to males but did not apply to women. If the women was older
Sex underage,
Male 17
Female 16 and a half
Michael was charge for statutory rape.

Why do we have laws that kids can’t consent to sex?
A) The law does not see the child is mature.

This was a Supreme Court case that was decided in 1981. The case involved a law in California that held a statutory rape law. That held it was unlawful for a male to have sexual intercourse with a female who is underage (18) unless they’re married. But the law didn’t apply the other way around. So if a female had sex with a man who is underage she was not breaking the law, but he was breaking the law.

In this case involved a male, Michael M. who was 17 and a half, so he was under 18 and a female who was 16 and a half. Both underage and both had sex and Michael M was charged and found guilty of statutory rape.

What is statutory rape and how is it different from other forms of rape?
A) So in a typical rape case, in on statutory kinds of rape, the question focuses on consent. If you force someone to have sex, who was not consenting then you are raping a person. In statutory rape cases, the issue of consent doesn’t come up, and what would be the reason for allowing someone to be charge of any kind of rape regardless of whether consent was involve? What’s the idea behind statutory rape law?
A) student, “that whatever the age is 16 or 18 a person under that age can’t give consent, they can give consent physically but if they do give consent it’s not recognized by the law.”

Why do we have a law that says, kids can’t give consent to sex?
A) this idea of if you’re a child, especially the risk I think is greatest if you think about a child and an adult, you could say, “oh yess this 5 year old, she or he was perfectly consenting, this kid wanted it. Well it’s regardless just to give you an extreme a 5 year old, we don’t think that most 5 year olds know what they’re doing when they consent to sex. They’re not an adult, and if you have sex with an underage person. Whether they choose that or not that’s not the issue, what you are doing is illegal and what you are doing is statutory rape.
So if a minor, or 5 year old takes a gun and kills someone, even say we want to prosecute juveniles as adults, if the kids is 5 we don’t treat their action as having the same level of understanding. Its this issue of infancy comes in when someone is a minor, we don’t think of them as having much control over their actions or much understanding of what they are doing. So consent is an issue here, actually I think it’s kind of interesting that if you look at this case (Michael M). it describes what happens but the two of them had sex I guess they broke off with the others they were with including sharons sister and it says that he slapped her.
After being struck in the face rebuffing the petitioners initial advances Sharon Submitted to sexual intercourse with petitioner.…………………………

One might say, well maybe this was actually also a case of non statutory rape if he was hitting her and she submits but that’s not what the case focuses on.

The case focuses on whether there can be a law that holds him responsible and not her. The petitioner says, “this is not fair you are using my sex in a way that I am disadvantage, we are both under 18, why is it me, who is being penalized and not Sharon.”

Case Appealed from the District Court to the California Supreme court

So the California supreme court was appealed to the California supreme court when it was upheld by the district court. California supreme court says, well we are going to apply strict scrutiny here and in fact there is a compelling state interest at issue. Now the supreme court, when it reviewed it said, “we don’t even need to apply strict scrutiny”

Why would California have such a Case:

What was this interest that the state of California said have in a law that made a gender based distinction between women and men?
A) the interest of the state is preventing Teen pregnancies, so then the question is ok, if you want to protect Teen pregnancy and that’s the purpose of the law.

Why would you have a law that punishes the men who engage in underage sex with a female and not punish the female who engages in underage sex with a man? Why did they argue that they needed a law like this one?

Burden of responsibility lies with the Female: A) Student, “ because the burden of responsibility rest on the women not the man”
Ok, so what does the burden of responsibility falls on the women?
A) so if a couple of teenagers have sex, the burden of the pregnancy will fall more heavily on the female than on the male. And why is that? Biologically and physically, women can get pregnant some woman can and men cannot get pregnant. So the burden will fall heavily on the female. Therefore the court argues she will have an incentive already not to engage in sex as a teenager whereas teenage boys or men will not have the same incentive. So they need a law that would criminalize having sex with someone who is underage whereas the females involved they don’t need a law.

The Supreme court on page 462 explains this rationale. It’s on top of the first column……….. “an emudable physiological fact that the female can exclusively become pregnant, they talk about problems with teen pregnancy including abortions, increase medical risks. Social consequences of teenage child bearing. So the court concluded that the state is a compelling interest in preventing such teen pregnancy because males alone can physiologically cause the result which the law properly……

The Law Today penalizes males and female differently It applies to Both now:

Should our laws against statutory rape penalize males and females differently?
A) Yes its illegal in Michigan, we’ve heard the term Jailbait. Does it apply both ways? Yes it does now!
This case was in 1981, what might be a reason not reason for not agreeing?
A) So one response they have is, If we are talking about the deterent affect we need to look at what would be the deterent affect of having a law that says both males and females can be prosecuted for having sex with someone underage. It could be the case that those laws would have just as much if not more a deterent effect.
The argument is made that the court doesn’t provide evidence that a specific law that targets only males for having sex with someone underage. They haven’t provided evidence, this was more effective, even at the time that this case was decided in 1981, there were a number of states (37) that had gender neutral statutory rape laws as most states now do .

So they argue what is the evidence that it actually has this effect. Moreover they called into question the motivation for having such a law and they claim that preventing teenage pregnancy is one motivation but, this idea that we are going to hold males responsible but not the females is actually sexist in certain ways.
Then why would that be? In what way could a law like this said to be discriminatory against women, even though it actually says that women are less subject to prosecution. There is something problematic one might argue about this kind of double standard.
A) is it paternalistic, in a sense that is like women need protection or they need to be looked after because we can’t make that decision on our own.

Week 11 Lecture 02
Wednesday November 12, 2012 Minnow, “The Dilemma of Difference” (404-409)

Martha Minow’s called the Dilemma of Difference. She is talking in particular on issues that effect women in the law and often affects that has been historically discriminated again and haven’t been the majority and the issues that these groups experience and the problems that they suffer are often talked about in terms of difference. So women’s difference in men is often the emphasis. As I mentioned when I introduced you to the concept of sex equality there are two common approaches to sex equality law. One involves, saying that women are basically the same as men and we deserve equal treatment based: Two Common Approaches to sex equality

1) Equal treatment “sameness”
5:20
women are in many ways the same as men and they deserve the opportunities and the same treatment.
It emphasizes women’s sameness with men and thus equal treatment is the remedy to the problem. We are not different from men and we should be treated the same, that is what equality is about.

2) Special benefits “difference”

In contrast to “sameness”, Yes there are some differences. These require that women have some special benefits made out of every half of them.
What Minnow does is she looks at debates about sex equality law and she says that there are these debates there is this dilemma here in terms of sameness and difference.
What’s going on when we have a question of sameness or difference? And she notes a number of problems and questions or assumptions that get made when people think about sex equality and the law.

What is sex equality and the law. What do you think people who talk about sex equality are aiming to achieve?
What would society look like that had complete sex equality?
So if we had a sex equal society there would be justice. What would it be look like though?
There is no complete consensus on who this would look like. Would we have difference between women and men if we had a world of sex equality? Would there be less difference would we be that same? What about race equality?
Ok so with sex equality at least we can acknowledge that women and men have different bodies. Males and females have different bodies and in order to have quality in the law we all have to have the same body in terms of our sex.
So there is question of what we mean when we talk about differences. You could say that men and women are different and they get different pay for doing the same exact job. No that’s not the kind of differences that we see this acceptable under a rubric of justice and equality for doing the same job which you get the same pay. But giving women what they need to bare a child since men don’t bear children and some women, many women do. We would have to incorporate that in the laws some how, but legally were equality If often seen treating likes a alike and difference differently. You get into some tricky territory when you look at the ways in that the sexist is different.
So how do we acknowledge sex difference in particular without requiring that women need exactly the same and if we do acknowledge those differences how do we ensure they are not ones that disadvantage women. Well that’s more problematic and that’s not the kind of differences we want to encourage.

So Minow argues that there are various assumptions that Minow thinks go into this debate about difference.
12:53

MINOW- Problematic Assumptions

So Minow argues that there are various assumptions that get made and that these are problematic assumptions.
These are assumptions that get made and are problematic, So the first assumptions that she talks about is this’ Idea that difference is intrinsic in a person.

1) The idea that difference is intrinsic in a person.
What does that mean when you say that people often assume that difference is intrinsic in a person. What would that mean? Why would someone think this?
We talked about women’s difference and diversity in terms of racial and ethnic groups. Oh yeah we need some diversity in the classroom. We need to bring in these people because we are different.
So you can think on how the context matters, so you can think about how the context matters, so you might feel like coming to Michigan state, you’re really different from other people say you live with in the hall of your dorm freshmen year, maybe they came from a small town and you’re from suburbia and maybe they’re from the up or another state. Then you think maybe I’m really different from this person. And yet you go abroad and live in Africa or Asia, and now I feel like im quite similar to these people in Michigan state that I went to school with. So the point of comparison matters. Difference does not adhere any individual person. And yet often how we talk about racial differences and sex differences. It’s the minority or the person who has been discriminated against the descenting different as if its something inheret about them as a person.
2) The norm need not be stated
With this point involves that this idea that women are different and women want equality or people who are of a religious group ethnic group that is not a minority. They’re different. But different compared to who. Different from what.
So there is a norm at play here ad often the norm is the dominant group. So if you talk about women being different from men so why are men the ones are having this standards. So what minnow says is well, we need to point out that there is always the norm against which people are being compared and often we talk about questions of difference and don’t focus on why is that the norm and maybe that’s not the only way to be.
So if you think about employment and issues about maternity leave. To come back to that example again. The norm of a worker is that he shows up to work and how does he have a family well he has a wife that at some point takes care of children and has a baby. The norm for the work place is not that at some point every worker needs time off to have a child, have children and raise a family. That hasn’t been historically the norm in our country.
What is the norm. Well the norm is based on the assumption that most people in the work place were men who had wives who did the majority of the child care. So we need to think about, well why is that the norm should that continue to be the norm.
3) Observer has no perspective of his/her own
So the third assumption she notes that the observer, is said to have no perspective of his or her own.
Who would assume that the observer has no perspective of who’s or who of his or her own?
So how does this plan to the law.
Justice is blind, what does this mean? It means unbiased perspective. We have this idea that the law shouldn’t bring personal opinions and views directly into plan for a court case. So if you are sitting on a jury, how many of you sat on a jury? If you are sitting on a jury, you are asked assess what you hear objectively. If you are a judge deciding on a case, you are suppose to be fair you are not suppose to bring your own perspective. So that’s the ideal.
So it’s Minow saying it’s a bad ideal?
How would we go about achieving it if we sit in the role as a judge or jury. So you try to pay attention to what the law is.
Minow’s claim here is that people often fail to realize the ways in which their own views and their own decisions in the court room and in many other arenas. They often fail to realize the extent in which they are bringing their perspective. It’s hard to get out of our perspectives and often it’s the case that people often who are not in the majority that their perspectives are seen as being more bias than the perspectives in the majority.
So she gives an example here of a black women judge. Who was challenged by the law firm who was the defendant in the employment discrimination case. They claim that because she had ones represented a plaintiff in a discrimination case. She could not be objective about the situation about this case.
So what Minow is saying is that every one of us has a perspective and everyone of us has a race and has a gender. So its wrong to look at people of minority races and say they must be influenced by the fact that they are a minority. They can’t be objective here, they are always going to side with person of color in the case. Well why assume that white people aren’t also affected by race
We should try to be objective but we should acknowledge equally that we are all affected by our perspective.
4) Other Perspectives aren’t relevant.
The fourth assumption that other perspectives aren’t relevant. This one is fairly uncomplicated which she is saying is that we need to look at other peoples perspectives and not just rely on quick stereo types of what people are not the same as us are like. We need to really look to understand, well what is their perspective, why might someone disagree with me and understand that, because their perspective is relevant to assessing what is going on.
5) Status Quo as good/natural
Finally her last point is often assumed that the status quo, whenever we have right now is good and that changing whatever we have now would be bad and those we really need a great argument to change whatever we have.
Which she argues too that this idea that the state should just do nothing and keep things as they are we may need an argument for that and in some cases what we’ve had in the past and what is the case for right now may not be good but may not be natural just because we have something right now. We have a law in particular practice, that is evolved out of a particular history that may not be beneficial to everyone or may realize that its not very equal and that it may need to be change.
Her pointe here is, the argument that she is making is that these problems often appear in the law and that there is something wrong with each of these assumptions and there is often, that there is a larger problem, I think she is articulating and that is that this problem that women are different than men or are they the same as men?

sears vs. eeoc (equal employment opportunities commission) case:

That maybe the wrong question then so I want to turn now to the last question that I asked you on Monday and that’s the sears vs. eeoc (equal employment opportunities commission) case:

28:08 on Notes sheets

this is an interesting case. Feminist who were advocating for sex equality, actually came down on different sides of this case. So Alice Kessler Harris who was the historian and an expert witness for the eeoc. She argued when it comes to job preferences. Women are basically the same as men, so given the choice and the opportunity. Women would choose to engage in similar work to what men do.

Another feminist historian was an expert witness for sears and this was rosylyn Rosenberg.
She used a relational or carebase approach to feminisim. She claimed that women are different from men when it comes to work.
According to Rosenberg, women valued other goals such as family over money and they internalize feminine values such as nurturing. So women are relationship centered have lower confidence and less assertive and worried about alienating men.
So they claim that the work of women outside of home is often similar to the work they do inside the home in these ways. So she argued specifically and this is quote from Rosenberg. Women tend to be more interested than men in the cooperative social aspects of the work situation. As historical evidence shows it is not surprising that men and women differ in their expectations concerning work and their interest to the types of jobs they prefer. Or the types of products they sell. It is naïve to believe that the natural fact of these differences is evidence of discrimination by sears. So what do you make of these case, were women discriminated against in this case where you have these people in sales position making a lot of more money and its men predominately in these positions, selling appliances selling heavy equipment. It’s a high stress job making money on commission. What if it’s the case where there are no rules stating we only hire men for these jobs but informally that the boss seems to hire women for one kind of job and men on the other. What about jobs that women are prevented to have due to a risk of sexual assault. Prisons don’t hire prison ward in all male prisons. But males are allowed to be wards in female.
So Minow describes this EEOC v. Sears case as way of saying here is an example of how these different dilemas of difference can come up in a particular case and we end up focusing on the wrong question. So are women the same as men or are they different from men. Well why are the jobs that men do different from being compensated more than women. And why is this question, well its women’s nature. Then why are these questions being brought to the table.

40:40
Parenthood, Same-Sex Marriage, and Equality in the Law
“Michael H. v. Gerald D.”
US Sup Ct 1989

This was a US supreme court case that was decided in 1989. It’s a complicated case, where you have a couple married. Gerald D and Carol are married and at some point Carol has an affair with another man name Michael H.
And she gets pregnant while still married to Gerald but involved with Michael H and she has a child name victoria.
So for the first three years of Victoria’s life, Carol lives with Michael H. She does not officially get divorce from Gerald but she lives with him on and off for 3 years and Michael develops a relationship with his biological daughter Victoria and she calls him daddy.
At some point after this, Carol leaves Michael and returns to her husband, Gerald.
The QUESTION is, who’s child is victoria, that is the question. Because legally it’s the case of the state of California. There was a law that stated that the child of a married couple, the father is legally the women’s husband. If a woman’s married and has baby the father of the child legally is her husband and yet now we have tests that could be done and as they did in the 80s that could and did prove with 98% certainty that Michael was the biological father of victoria. The California law in question here states where there is a case where there is a wife cohabitating with her husband, has a child. The child is consumingly presumed to be a child of marriage. The child is said to be the husbands child even though in this case it was not. So this case comes before the court when Michael says once carol goes back to her husband. Michael says, oh I want to see my daughter. I want visitation rights to my daughter and this law says she’s not your daughter. You don’t have any rights to visit her.
So this case eventually gets appealed to the California Supreme Court and then the us supreme court. So the question that the Supreme Court considers is how to apply the due process laws that Michael claims to be violated.

Gerald D & Carol D
MARRIED
Michael H

XIV Amendment (14th)

So plausid issue here in section 1 no state shall make or enforce any law………… Nor shall any state shall deprive of a person of life, liberty, or property without due process of the law.

Michael claims to have liberty interest that the report is violating and allowing Gerald and Carol to exclude from visitation rights so he sues and says that he wants to be declared the father of the child. So what does the court decide in this case?
SCALIA’s Opinion: Michael H has no right to Victoria.

Scalia write the opinion for the court and says, “No Michael cannot be legally declared as the father and he therefore cannot have visitation rights to victoria.”
There was also a suite filed under victoria as a minor how she could file it herself. But the claim was made that she has an interest in seeing her father. So the court rejects both of these. What’s the rational for that. What’s the rational that Scalia offers in this case. So how does he say, that it’s a tradition with according to tradition. Michael shoudn’t be claimed be declared as the father?
So typically marriage or parent hood revolves around the nuclear family structure where you got a married couple and a baby is born and the parents traditionally regarded as the husband of the woman who has the baby and the wife. Is that the way that the court should have ruled in this case and what are some of the problems, that gets raised in the decent here.
Why would this be a law in the first place in California. That states something that seems kind of odd. In fact, biologically, Victoria’s father is Michael but according to the law that’s not true. Why would California have a law like that in the first place?
This law was put in here 100 years before the case arose. Back then they didn’t have that DNA evidence technology that we have today.
Scalia says this because it protects the sanction of marriage. It would keep things more stable and in tact.

What else did Scalia say that he decided the case that way?

Protects marriage, nuclear family Traditions, nowhere in the constitution states have two fathers:

1) Protects marriage So he says we have a clash asserting this liberty rights (Micheal). If he gets acknowledge as a father, he is in fact diminishing Geralds liberty right in his marriage staying in tact with husband wife and child. That’s something that has to be given up.
But given that there are these two liberties at issue here. Why does he favor the one, why does he favor Geralds liberty interests as oppose to Michaels.
So he says, how do we figure out how does this liberty interest understood, well we look to the liberty interests that have been protected by equal protection clause and nowhere do we find an example of two fathers being aknowledge and being the interest of a child, we don’t have a tradition for that.
Take a look at page 415. And Scalia here in the first middle column:
So we have these traditionas that protected the martial family and therefore there is no tradition of protecting Michael or victoria’s liberty interests in a relationship outside the marriage.
So on the next column……………

Balkin’s Critique to Michael H.

In both the decent and the essay by Balkin, there are questions raised about how scalia understands this concept of tradition. So what does it mean for something to be a tradition and how do we define what traditions are?
So Balkin raises two particular problems here:

Understand What Discrete means
58:50
Balin’s Objections to Scalia’s decision in the Michael H case.
Scalias decision:
1) In understanding what traditions are. Scalia assumes that traditions are discrete. What does that mean, the word discrete?
Discrete has two meanings and the one you are talking about is spelled differently. That is like secretive. So to say something that a discrete entity, its something that is easily separated out from other things. Like a discrete unite of something. Separate from the rest of the things I’m distinguishing it from. So Things that are discrete are separate things.
Ex) so if I have a parking lot and people are all parking their cars and theyre just parking their cars, you have lines that says this is a spot as many spots. There are discrete spots where you are suppose to put your car. How does this relate to the idea of traditions? What sense Scalia is assuming that discrete is separate things, according to Balkin and are they?
How do we define a tradition though? What does is mean to have a tradition?
I think what Balkin is saying is that this is a complicated question and when we look at the traditions of a society. We have different ways we can demarcate them. So when Scalia says there is no tradition of allowing a man like Michael to claim rights like his daughter. What is he referring to? Is there a different way of understanding our traditions.
Are there other ways we can harp up the traditions?
We can look at traditions in a number of different ways and if we cut them up so narrowly that might lead us to other problems.
We have traditions of acknowledging a parents right over his child. We can talk about it that way and then it seems that Michael does have a right. I mean this comes up in questions of gay marriage.
So how we carve them up is really important, and balkin actually raises this counter argument where he says well, one could say Scalia himself doesn’t have a right to see his own children. Because in a law we have never recognized the right of . bottom of pg 419.

58:50

Scalisa assumes tradition

1) Are discrete (separate thinks)
2) Are normatively correct

Week 12 Lecture 01
Monday November 12, 2012

The issue of same sex marriage connects the question about the sex equality and in fact a couple of the readings for today explicitly consider the question of whether same sex marriage is an issue of sex equality. Or whether its an issue of equality based on sexual orientation, specifically. Obviously sex and sexual orientation is not the same thing.

First I want to say something about the federal law and then the different state laws. So as most of you guys are aware, whether or not any given mistake wants to recognize that same sex couples have the right to marry and form domestic partnership. Well that’s up to the state. Until 1996 there was no separate federal law about which marriages could be recognized.
In 1996 a law was enacted and president Clinton at the time actually signed this into law, that the Defense of Marriage Act DOMA.

DOMA (Defense of Marriage Act) 1996-
For the purposes of the federal government that marriage was defined as the inbetween a man and a women. What this means is that if a couple is allowed to marry in a given state, and at the time I think there was a wording that some states were going to start legalizing gay marriages if that happened. The federal government didn’t recognize that as marriages. So when gay marriage was made available to the state of Massachusetts. Couples in Massachusetts can be married but the federal government doesn’t have to recognize those marriages.

So DOMA has come under challenged, in federal courts and July 8th of 2010. It was challenged specifically in Massachusetts. The claim was that this act defining marriage as between one women and one man is unconstitutional. Recently Obama is in favor of gay marriage. DOMA is still moving its way to the court system.
Just weeks ago there was 6 states that recognize the right of same sex couples to marry and then the election just a week ago. 3 more states were added to the list. 9 states that recognize the right of same sex couples to get married. Interestingly until now, until week ago, the 6 states that initially allowed it, it was all driven by court decisions where a court declared that gays have a right to carry.
However last week the first ballot measures an enacting gay marriage in, Maryland, Washington, main, and ballot measured in Minnesota, restricting marriage to a men and women failed. There was a ballot in 2004 initiative that passed So in 1996 just 25% of americans supported legalization. In 1996, just 25% percent of americans supported legalizing same sex marriage.
11 countries recognize officially same sex marriage: Argentina,

The first readings you did involved cases in the state of California, I want to hold off to that and move to the sunstein essay. But I do want to give you some background on California because it’s a complicated state in terms of gay marriage and its also important to keep in mind that, that case regarding marriage cases (title of case) that was a California supreme court decision and the standard of scrutiny is different in that case then they are in the us supreme court. But if you are confused as to why they were using the strict standard of scrutiny to talk about sex discrimination, that’s because they have more rigourous standards in the state of California. Which you can tell by reading that its more liberal than some other states. So hold off on that, the essay by Jeff Jordon and Cass Sunstein, they take opposite position on same sex marriage:
Sunstein is in favor of same sex marriage
And Jordon argues against it for some other different reasons.

The analogy comes up in same sex marriage and the mysagonation and anti mysagonation statues and sunstein mentions an analogy to the case. Where the issue at question in the loving vs vrginia case.

Sunstein, “Homosexuality and the Constitution” (436-441)

Loving v. Virgina US Supreme Court: Concern inter-race marriage. anti miscegenation
Loving was white man trying to marry a black woman.
The loving v Virginia case concern inter racial marriage, so what were anti miscegenation laws?
There were laws in Virginia, a white person married to a non white was illegal. And the argument that was made in favor of maintaining these laws was, they loved everyone equally to where no one can marry someone of of another race. So the idea here is if you keep the race separate, you will maintain white supremacy. How does that work?
- So if you allow people to marry those of another race, the children that they have the many people that they marry and many have children. Well their racial category will be mixed. Then it will be unclear if this person white or black and if we end up a lot of people inter marrying, we no longer have clearly defined races. Then we cant tell the white people from the non people.
No one cannot marry someone of another race.
Whites cannot marry blacks.

Proponents argue that marrying outside of the white raise strips white supremacy. The children they have will have an unclear race.

On pg 437 Sustain looks at the language
“ appear to make the following argument…….. even there is formally quality the band is transparently…. Indispensible to white supremacy……… the band was a part of a system of racial passs…….. thus defeating the districts judge….. produce by gods plans…… (god wants to keep race separate and he made it this way ).

How does this relate to gay marriage?
A)male supremacy tends to be promoted by the restriction of gay marriage. He gives this hypothetical case and says, if two people want to get married and they are they same sex, and want to claim that they are being discriminated against based on the sex. say two women want to get married and the women could get married to another women if she were a man so it seems that shes about that’s shes not a man that is preventing her from marrying this woman.

What Sunstein is saying, laws against gay marriage, works to keep men as men and women as women and that when we have this idea that men are men and women are women that that works to promote mens dominance In many areas in life. This connects back to sex equality where women are not paid as much, women are subject to certain kinds of violence etc than men. Women are expected to do more work at home than women. He thinks that one of the reason.

If you have two gay men two lesbian someone has to be the active one. One has to be the passive (this is the stereotype by the way). He says that men are bothered by the thought that men are sexually passive. Men are bothered by the idea that the women are the sexually active on and the agent.

Ex) Mike Tyson saying I’m going to get make you my girlfriend.
Ex) Coach yelling, you guys are being bunch of a girls or you throw like a girl.

What comes to mind when only opposite sex is allowed to marry?
A) it promotes a hetero normative culture. And favors hetero-sexuality.

Calling someone a Dick, it means they are being Jerk but in a powerful way. That means they are being a jerk in a powerful way. They aren’t being weak or anything of that sort.

What Sunstein is saying is that this is harmful to women and that if you allow gay marriage probably eventually. There would be a less rigid boundary between masculinity and feminitity and that would be good in certain ways.

Week 12 Lecture 02
Wednesday November 14, 2012 Sunstein, “Homosexuality and the Constitution” (436-441)

So I wanted to continue where we left off, we were in the midst of talking about Sunstein.
What would you say Sunstein’s main argument points. He’s looking at the question of same sex marriage and its legality and he is arguing in favor of same sex marriage. He thinks it should be legal. What was one of his main argument?

he argues that restricting same sex marriage promotes male supremacy.
So Sunstein emphasizes the ways that in society we have certain rules for men and women. These traditional gender roles and that these roles emphasize active role of men and the passive role of women. So what he is claiming is that understanding gender roles in this kind of a way where men are the active agents and women are the passive. He thinks this is actually promoting these rigid gender roles to promote the dominance of men over women and he argues that one function of same sex marriage is to challenge the idea that there are these rigid gender roles. So if you think about it. If a couple consist of two men or two women. It’s harder to say that these masculine role is naturally the dominant aggressor role and the feminne role is to be passive.
So he is claiming that one of the reasons are against gay marriage Is because they want these roles in effect uphold male dominance. So when you look at this reasoning. Why would he strategically a good idea or an interest of strategy for some to argue that same sex marriage promotes sex inequality the dominance of men over women.
SO you could say, that if he is right, a lot of things need to change in society.
SO I think what he is saying the people recognize that sex inequality in the law and they are willing to strike down on the laws that are really blatantly in favor of men’s dominance over women. For example a law that says, women can’t vote. That promotes the subordination of women.
So one thing he is trying to do is strategically say, ok if he is looking at same sex marriage and show, it’s a discrimination based on sex. Based on a female or male.
One point I wanted to point out is that what I think sunstein is trying to do is, he is looking at the US supreme court on the national level. Sexual orientation has not typically a suspect category and if a law was met the minimal of scrutiny, rational scrutiny the lowest level. Then it said to be acceptable if it’s using this category of sexual orientation. The category of sex though, Gender, is held to intermediate level of scrutiny. You need a better justification for that law if it involves make a discrimination based on sex. And it an even better discrimination compelling state interest in a very narrowed tailored law if it’s using a racial a category.

14:42

The other thing I wanted to do is give you an overview of what happened before this case, which was decided in 2008 The first important points to note is that domestic partnership became legal in California in 1999.

California

1999 Domestic Partnerships.
In 1999 same sex people could get married and enter into domestic partnership which in 1999 did not come with all the benefits of marriage. So initially it was something that was less xtensive than marriage in the state of California.

2003 DPA (Domestic Partner Act)
However in 2003, California inacted what was called the DPA and this is referred to in their readings. This was the domestic partners act in 2003.
This gave domestic partners in the state of California all the same rights and responsibilities and privelages under California law. So as we talked about on Monday, at this point in time anyways does not recognize same sex marriages performed in different states. Does not recognize same sex marriages performed in different states and does not recognize the privaeges and rights of domestic partners who are given the same rights as married couples. By the states, for state purposes. Domestic partners starting in 2003 in California have the same rights as married couples do but only rights concerning state matters.
The federal government doesn’t recognize domestic partnerships and marriages between same sex couples and that was in 2003.
______________________________________
2000- Proposition 22: Marriage is between 1 man: 1 woman
So in the year 2000, the state of California had a ballot measure. Proposition 22 that was passed by the electric and it limited marriage to opposite sex couples (man and Women. Defined as one man one women)

2008- “In Re Marriage (California supreme court) Overturns Prop 22
Prop 22 added section 308.5. This is mentioned in your reading and you don’t need to know that specific number to the family code of California. It read only marriage can mean that men and a woman is recognized is valid or recognized in California. Because, the statute just an ordinary statute that people had passed, it could be over turned if it was found to be inconsistent with the state constitution. In the state that you read. That’s where you read fits into this.
After this, just to give you some thought. After the case you read, another ballot that proposal was passed in California and that was prop 8.

Prop 8 (later in 2008)
So that was later in 2008, same year in November 2008. Same year, in November 2008. So the court case you head decided in may 2008. So 6 months later. California voters approved prop 8 which is very similar to prop 2.
Now prop 8 has been challenged and if its been currently making its way through the courts. So it’s pretty complicated, you should have a basic sense of whats goin on in California. * but you should know that there is one proposition that said: marriages for opposite sex couple and this case you read over turned that and its been challenge.

35:55
Sex-biology/bodes (male female)
Sex concerns what kind of body you have. Are you male or female.
Male bodies crrespondes and correlate to men the.

Gender- Social Categories ( Man/Woman)
Gender is a social category that we recognize as a society.

Question: Is prohibiting same-sex marriage:Is prohibiting same sex marriage. Does that constitute discrimination on the bases of sex or gender. How does the court answer these two questions?
Discriminate based on sex/gender.
Discriminate based on sexual orientation.

So how does the court answer these two cuqesto

50:13
Discrimination- treating something in an unfavorable way.

Parity thesis: there are no morally relevand differences between homosexuality + heterosexuality
Differences thesis- There are such differences

The California supreme court in this case says, actually its not a matter of sex discrimination. They look at that same analogy to prohibiting inner sexual marriage. They say that sunstein example, but this idea of prohibiting same sex marriage is just like prohibiting inter racial marriage. Just like that was racist this would be sexist. They point out that prohibition on interracial marriage really did make a distinction based on whether you were white or black because it was not the case that anyone cared. The law cared anyway, it wasn’t the case that the law restricted non whites from marrying other non whites. Even if they were of another race. So if you look at what was going. There was a different treatment between the races in a way that laws against same sex marriage don’t discriminate against men and women in the same way. Men and women have to marry someone of opposite sex.

The state of California is considered a suspect category. It is held to the highest level of strict scrutiny. So the third question. After saying no to the first question. It’s not discrimination based on sex and gender.
And yes to the second question, is it discrimination to the based on sexual orientation, the court looks at the levels of scrutiny. They argued that sexual orientation should subject to strict scrutiny. So they considered a few different criteria in answering these questions.
So according to previous decisions of the court, for something to be a suspect category and not ligetimate to discriminate it has to be based on imutable trait (pg 428). It has to bear no relations to a persons ability to perform or contribute to society. So if you think about race as being a paradigm of what is unacceptable to discriminate based on race based on immutable trait. It has n relations to that persons ability to perform in a society and third this trait has to be associated to the stigma of inferiority and second class citizenship manifested by……
So if you look at these criteria, its clear the second two are met and the first one is often the sticking point. So is sexual orientation something that is immutable. Is it an immutable trait. What does it mean to be immutable trait. You can’t change it, so is sexual orientation a trait about you that cant be changed. Any thoughts about that?
43:55

GERALD ESSAY
Its interesting around various issues surrounding gay people, focus on this issue. Why is there such a debate about this?
So some of those who argue that it is changeable. Say that we shouldn’t give special rights to gay people because they are choosing to be gay.

Is it wrong to discriminate to discriminate of homosexuality. He thinks that its not wrong, that its morally acceptable to discriminate on the bases of homosexuality. He gives the arguments as to why he believes in that.

What does it mean to discriminate? You can say I discriminate to papers from each other in so far as one is a 3.0 and the other is a 4.0. I’m making a discrimination what he means though isn’t just the detection of a differenc. He means treating something in an unfavorable way.

He notes that there are times that we think that treating something or someone in an unfavorable is acceptable. I think the example he gives is convicted felon not allowing them to vote. Discriminating them in a unfavorable way. But he would claim that its not wrong to treat a convicted felon in an unfavorable way because they committed a crime and convicted felon its acceptable to to do that

The question here is it acceptable to discriminate, In a unfavorable way people who are homosexual, based on their homosexuality. He’s going to argue yes it is.

He says that there are two different thesis on how we should treat homosexuals. The parody thesis and the difference thesis.

Parody Thesis:
So the parody thesis claims that, there is a parody that there are homosexuals and heterosexuals. So the parody thesis claims that there are no morally relevant difference between homosexuality and heterosexuality. They are in par with each other, they are the same.

Difference Thesis:
The difference thesis says, there are morally relevant differences between homosexuality and heterosexuality. And he is going to argue then for which of these two thesis? The difference thesis!
So he is going to say that the parody thesis is wrong and in fact there are morally relevant thesis.
So he goes through and lays out an argument ( look at the argument on page 442 where he has the 6 premises of the argument)
So he starts by asking, what is the best argument that some you today for the parody thesis that there are no morally relevant thesis between gay people and straight people.
Looking at the proponents what jumps out at you?
It’s talking about personal freedom. In what sense is homosexuality about personal freedom according to this argument? So one argument that could be made that he thinks is the best argument is people have the right to privacy and to freedom of choice on how to live their lives. Parody thesis might claim that to treat homosexual people on par with hetero sexual people is necessary to preserve their right to free and the right to privacy. So in the way that we act. in our own bedroom that is non of the states business and that’s the idea here.
This argument really focuses on that homosexuality as really a choice, its not saying that here but he does think it’s a choice and so if you don’t think it’s a choice, you might not find this the most powerful argument. Although a number of people still say it’s important to have a privacy and freedom to act in ways that don’t hurt anyone else. So the question is that if that’s all that homosexuality is involved.

- He looks at this argument and moves from this argument to a discussion of moral impasses in public policy debates. And one thing he says is ok, it maybe true that people are able to make personal choices and have freedom to things in private but when it comes to marriage that’s something that isn’t a private matter it’s a endorsed by the state therefore it’s a public issue. So it’s not just a homosexuality occurs in a private sphere, its brought into the public sphere and aknowledge by the state. He thinks there is the dilemma that is raised that the fact that people have different views about this accpetabilty of homosexuality. So he thinks this is a moral impass.

1:02:55
Impasse- Situation in which people hold genuinely conflicting beliefs about morality.

Week 13 Lecture 01
Monday November 19, 2012
Absent Back from Ohio State from Sally

Week 13 Lecture 02
Wednesday November 21, 2012
No Class due to Thanksgiving Break

Week 14 Lecture 01
Back From Thanksgiving Break Monday November 26, 2012
Skip Fuller, “Positivism and Fidelity to Law” (78-81)

A brief overview of what I started talking about last Monday. We were talking about theories of legal interpretation and in particular we were looking first at Scalia’s theory of interpretation. So we talked about the smith vs US case where the question what does it mean to use a gun or carry a gun in connection with a drug crime. So there was this question of how to interpret what that mean
And in the next essay by Scalia he talks explicitly about his theory of legal interpretation is and wanted to lay this out because it can be a little confusing in the text book.

Scalia is an originalist and that the general view of originalism is in contrast to another view non-originalism.
So originalist look to see what is the original meaning that’s in the constitution and whats the original meaning of the law.
But there are two different ways to interpret what it means to talk about the original meaning. Scalia’s version is that we look at the meaning itself and we look at the text.

Originalism:

CTS should interpret laws+ attempting to discover original meaning .

Intentionalism Textualism (Scalia)
So scalia’s view, he is an originalist but he his specifically a textualist.
How is textualism different from intentionalism? Why does Scalia disagree with Intentionalism. So what is his view?
A) So with intentionalism, Scalia worries that we can’t really worry or know what the intentions of the legislators who wrote the law or framers. We can’t get inside their heads to know what they intended. So that leaves things into interpretation in a way that makes them uncomfortable. So we need to look at the words themselves, what is the ordinary meaning of the words in that text. Not what to be intenders have in mind, What he worries even more about this view called non originalism which is identified with understanding of the constitution as a living document.
So in his essay, he refers to those who favor the living constitution and they think that the constitution that is is something interpret in the context in todays society it has the flexibility to it as does any law. So we are an evolving society and we look at the law in the context of current meanings.
This is the view that he worry the most about. Because he claims this leaves laws in the constitution too open to interpretation open to the wims of the judges.

Non-originalism

Living Constitution:
Emph on current meaning.

8:24 “Church of the Holy Trinity v. U.S.” (211-213)

So the church of the holy trinity case is a case from 1892. The Us supreme court case. It was decided a while ago, if assuming you read it. You probably noticed that language used the case somewhat dated and it may seem a bit more difficult.

In this case a church, contracted with an English minister to come over from England to the US and serve as a pastor. so once they did this the US government accused the church violating this particular law that was on the books. And the law prevented assisting or importation or migration any alien or alias under contract or agreement to perform labor or service of any kind in the United States (pg 211).
So it seems that the church of the holy trinity was violating this law that says you cant bring over a foreigner to the us and perform a labor of any kind.
So what the church claim was ok lets look at his law. So what was intended by the people who passed this law. Why was such a law passed? and do you recall why this law would have been passed?
A) to prevent any forms of cheap labor in the United States, One reason was to preserve jobs in the US, median jobs. The laws was also passed during a zeno phobic in history where foreigners where no encouraged to come over. And specifically these were manual labors that was targeted by these laws. So the reason the law was passed was to keep out these poorly caved manual workers. So the church of the holy trinity argued and the supreme court accepted this argument that this was never the intention of the law to keep out the minister who was contracted to serve in this church in the US. The purpose of the law wasn’t to keep out educated professionals like a minister.
Scalia mentions this case because he thinks it provides a good example of the kind of intentionalism which with he disagrees.
So the supreme court explicitly respectively when interpreting this law.
How do you go about deciding what the intentions where or someone or body that was passed by the law? We know the intentions were and they were not to keep out holy men. How do they know what the intentions were? How do we ever know what peoples intentions were when they pass the law?
A) Think about laws in our own world. Do we generally know that? So one thing we can do is look at the time in which the law is passed. Look at the context and why would they pass such a law. So they did that in this case. They even looked at the title of the act. So they can look at what the act. and the act says: “An act to prevent the importation and migration of foreingners and the aliens under contract or agreement to perform labors in the United States.” So the supreme court looked at that and said no one reading such a title congress had in mind any purpose of staying or coming into this country of a minister.
So they also look at the reports of the congressional committee. One time the congress wanted to substitute the words to Manual Labor for the words labor and service. Ultimately they didn’t do this because it was already about to go through and about to pass. So they didn’t bother to change it, in place of the one that’s there. Do you agree with the supreme court strategy of interpretation of this case. Do you agree as to how the law should be understand what the law means. Should we look at the intentions as to why the law was passed? Laws are often ambiguious and society often changes.

I think that matters a lot because we interpret. What Scalia says is that we just need to look at the words themselves and if there is a problem that a law is passed for a particular reason. But it doesn’t match up with the words say, what Scalia says s that we need to use the Democratic process to change the law. He does not think we should engage judicial activism where the courts are the ones who make these interpretation. If the law doesn’t match up with what its intentions were. Maybe we need to change that law, but did the law itself really mean what we interpret it to mean.

So Scalia makes this point when he talks about the problems with the living constitution view and he actually claims that allowing the courts to engage in the interpretation of laws in a way that changes with what those laws even meant, what the words themselves say this goes against democracy.
He notes that it can lead to new influxabilities. In page 217, he makes this point: He talks about the living constitution allows fluxbility that a changing society needs. But then he notes under bullet points that, “ just about the opposite is true.” Historically and particularly the evolving constitution which is this view that tends to be taken by liberal justices, Scalia is a conservative and argues for a convervative for an orginal meaning. So he claims that the evolving the constitution has imposed of faster new constraints and new influxabiites under administration and judicial actions. To mention only a few things can formally……….
So on page 218 second column………. Difficulties and uncertainties. So this is where he is saying that, its difficult to apply the original meaning but it is a lot easier to look for changing. So the key to that change is unknown and unknowable. So if we take this other view how do we know how to interpret the constitution. There is no way to know what that would be therefore we just have to look at its orginal meaning and what the law says. ..

See how this fits in the Smith v. US case where he is looking at the words themselves.

25:00
Give a little bit of background to the rights of privacy. Why is the right of privacy so important for interpretation of right to privacy.

Penumbra: It’s like a hazy shadow around something.

The rights of privacy are not really written word by word but there is something that is being alluded to that is something that is being written there.
So this right of privacy is based on the penumbras of various amendments of the constitution specifically.

3rd Amendment- Protects people from accepting soldiers in their homes. It suggest we have a rights of privacy at our homes.
4th Amendment- Protects people from search and seizure.
5th Amendment- claims people cannot be compel to testify against themselves, and due process clause.
9th Amendment- it claims that the enumeration in the constitution of certain rights shall be construed or deny of the people (it makes it clear that we have other rights not listed in the constitution and that the constitution does not exhaust that).
14th Amendment- So the due process clause comes in both the 14 and 5th amendements. And its interesting in the early parts of the 20th century this was use to protect economic rights. But was also used to some extent to protect freedom of speech. Due process clause what does it protect? So if you are going to deprive of someones rights you need to meet the standard of strict scrutiny.

I want to mention a few cases that establish some precedence when thinking about this right of privacy: In these cases the due process clause were used to protect, freedom understood as ones own private sphere. So other rights seem to be given this protection of due process clause guarantees.

Meyer v. Nebraska (1923): Right to marry, establish home +bring up children.

there was a law English only instructions to all public and private schools and this law was struct down. The supreme court held this case that the due process clause protects the freedom to acquire useful knowledge to marry to establish a home and worship god as dicted to owns conscious
We aknowledge that parents have the right to raise a child as they see fit. So people have a right to engage in such private matters. It’s up for people to decide for themselves.

Pierce v. Society of Sisters (1925): right to direct upbringing of children.

In 1925 the pierce of society and sisters, struck down a law that prohibited private schools in general. So the court in striking this down added to the list of fundamental rights protected by the due process clause.
So if parents want to educate their kids in the privacy of their home, state cant do anything.

Skinner v. Oklahoma (1942): right to marry+ procreate.

the court unanimously struck down a criminal statute provided that persons convicted three times of moral turpitude would be considered habitual criminals and be steralyzed.
This was a case to protect the right of people to marry and procreate regardless if they are criminals.
So if you steralyze a criminal you are preventing them from procreating. You are preventing something in their private life. This is interesting because this is something that passed the law that was concern with not just with the right of people to procreate but to interfere or enforce on them not being able to procreate. And this was actually an interesting precursor of the Griswold v. Conneticut case.

“Griswold v. Connecticut” (311-316)

I want to mention the law at issue, There was actually a law in the state of connectcut that has been in the books for a while
So this case was decided in 1965 and concerned a law that has been on the books for a long time in connecticut since 1879.
The law stated that it made it a crime to use any drug or instrument of purpose of preventing contraception.
The first attempted to challenge this law was acutally in 1943 right after the skinner vs Oklahoma case.
In 1943 tried to have the supreme court to hear to his case.
The supreme court refused to consider it. Someone needs to be arrested for violating the law before we can accept this
Ho vs Allman. Allman was the states attorney, he indicated that the law would be question and considered, openly and publicly advertising for a brth control.

A Few years later the Griswold case emerge: Where Estelle Griswold who was the director of plant parent hood in conneticut,
She was involved. Lee boxed (dr in yale), for giving out information of medical advice for contraeptiom There was actually two laws involved here:
1) prevented people in Connecticut from using contraceptions.
2) People couldn’t assists or counsel someone to commit and offense.

The court argued in favor of Griswoold. That the statuted violated the constitution, So writing for the supreme court, Justice Douglas argued that.

47:39

Week 14 Lecture 02
Absent due to sleeping in Wednesday November 28, 2012

Week 15 Lecture 01

We are going to be talking about the essay by Hart and going over the various legal theories he mentioned in that essay. After that I want to mention about Dworkins essay “Law as integrity”

Remember we were taking about the Essay HLA Hart “The separation of law and morals” and I went through two different theories and I want to talk about the third theory and then about Dworkin’s theory that doesn’t really fall neatly any of the categories.

Ok, so first we went over the differences between natural law theory and positivism. So if you were to describe most generally what the differences what these two legal theories, how would you describe the differences?

Natural Law
Natural Law Theory (King)

There is one key thing that Positivist and Natural Law Theoriest disagree about and it’s a very important questions?
A) So remember is an example of a natural law theorist. And natural law theorist told that there is one specific morality and we all know what this is either because it is given to us by some power like god or we know it through reason and its something that’s the same for everyone. So that’s a characteristic or a view of a natural law theory. What does natural law theory say? There are theories for what the law is.
So for a natural law theoriest who believes that Universal moral rules exist what are they thinking the law is? Like how does that have to do what the law is?
A) The key difference between these two theories is that for natural law theory, the law and morality are very tightly wedded. These natural laws of morality are also those are the laws and if you remember the statement “An unjust law is no law at all” So if something is unjust its not really the law. Natural law theory believes that the law and morality are the same. So these natural moral laws are things that we know by reason and that’s what the law is.

Positivism ( Hart, Austin)

Positivist

In contrast to that positivist like Hart think that the Law and morality are separate kinds of matters, so this identity between law and morality is questioned by positivists. That’s why the essay that’s called “the separation of law and morals” So law and morals are separate from hart.

Another positivist who’s name you should be familiar with because Hart talks about him quite a bit in his essay is John Austin and he argued for positivism many years prior to HLA Hart. And what Hart does in his essay that I explained to you last week. He looks at the argument that Austin gave for positivism and says there is something right about his argument but there is also something problematic about it. But the problamtic part is not essential to positivism.
What does Hart say is wrong with the version of Positivism that Austin put forward? He talks about this specific aspect of austin’s theory he thinks doesn’t make a lot of sense?
A)So Austin held this view called the command theory of the soverign. And under this what the law is whatever soverign power says the law is . So who is the sovereign power. That’s the person or body that every body has to listen to.

There is something that theorist that agree and don’t agree with this in terms of definition.

(King)
Natural law
We know this because god, natural, gives it.
These are theorist given by god.

These natural laws of morality; these are the laws.

These natural moral laws is what we know by reasons

Is a contrast to this by heart, Positivism?

Law and moral are separate by Hart.

What does heart say is wrong with the positivism?

9:38
Legal Realism:
Sees that natural law and positivism has two problems to it. Ex) no vehicles allowed in the park. is this unclear?
So what do vehicles mean?
What considerations go into that judgment?
So we think what is intended to this law.

Hart sees that there is a moral matter into what is being stated.
But what Hart wants to say, when we make determination how to apply or etc. there is still interpretation of the law.

So we do make judgments on what fits in the law.

15:40 pg 73.

21:19
Law as Integrity (Dworkin)

Should the court award her of the emotional damage of the courts.

How do we determine if a case has similar precedence?

27:00

30:16
Analogy to writing a “chain novel”
One person writes on a chapter and then another person picks on it and picks up on it.
Using a precedence in the past and use it in the future
When is it when a judge and disagreed with a precedence in the past? Ex) the case of racism and slavery.

36:20
An interpretation must:
1) Fits the data.
2) Show the data in it’s best light.

3)

It’s worth getting up in the morning when I wake up next to you.

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