Assignment 10

Due: Latest by Tuesday, June 11.

Since early 2013, women can be topless in New York City without fear of being arrested. Do you agree with that? What would Mill say? 

Assignment 9

Due: Sunday, June 2

1. What, according to Mill, is the major problem for a democracy?

2. Mill believes that not all laws are justified. Why not? Can you think of any existing laws that violate Mill’s principle? Do you agree or disagree with Mill? Why?

3. How does Mill justify the freedom of expression?

4. Freedom of expression is protected by the First Amendment; are there any cases of free expression, which are not protected by the First Amendment? Do you think freedom of expression should be unlimited?

5. Some scholars have suggested that the cases in which the courts have permitted states to limit religious freedom nearly always involve activities important to minority religious groups: the use of peyote by Native Americans, the practice of polygamy among Mormons and Muslims, the refusal to salute the flag among Jehovah’s Witnesses, and so on. These critics contend that the courts would not be likely to permit similar restrictions if they impacted “mainstream” religious groups in America, such as Christians or Jews. Is this criticism fair?

Assignment 8

Part I: Due: Sunday May 26

1. How does M.L. King argue that segregation laws are unjust?
2. Why, according to King, should we disobey unjust laws?
3. How does Aquinas determine if a law is just or unjust?
4. How would a Legal Positivist judge segregation laws?

Part II: Due Sunday May 26

Martin Luther King, Jr. quotes Saint Augustine’s famous remark that “an unjust law is no law at all.” It has been objected that this claim is plainly false. How can something fail to be “law” simply because it is unjust or in some other way immoral? King, himself, critics point out, was punished and put in jail for, as we would say, “breaking the law.” Assuming that King was right and the racially discriminatory statutes and practices of the South were unjust, does the fact that King wound up in jail prove that unjust laws nonetheless remain laws? Does that fact in itself refute Augustine? If not, why not?

Assignment 7

Part I: Due: Sunday May 19

What are Jackson’s arguments in support of the charter of London?

What are Wyzanki’s arguments against the legality of the charter?

Part II: Due Sunday May 19

In January 2005, Army Spc. Charles Graner Jr., who grinned in photos of Iraqi prisoners being sexually humiliated but told jurors, “I didn’t enjoy what I did there,” was sentenced to 10 years behind bars in the first court-martial stemming from the Abu Ghraib prison scandal. Graner, labeled the leader of a band of rogue guards at the Baghdad prison in late 2003, could have received 15 years. Asked if he felt remorse after the sentence was handed down, Graner said, “There’s a war on. Bad things happen.” Graner will be dishonorably discharged when his sentence is completed. He also was demoted to private and ordered to forfeit all pay and benefits. Graner was accused of stacking naked prisoners in a human pyramid and later ordering them to masturbate while other soldiers took photographs. He also allegedly punched one man in the head hard enough to knock him out, and struck an injured prisoner with a collapsible metal stick. Graner did not testify during his trial, but during the sentencing phase he took the witness stand to repeat the defense claim that the jury clearly rejected: that he had been ordered by intelligence agents at Abu Ghraib to abuse the prisoners to make them easier to interrogate. He said he initially resisted pressure to mistreat prisoners, but his Army superiors made it clear to him that he was expected to obey the commands of the military and civilian intelligence agents who ran his part of Abu Ghraib. Graner said a lieutenant in his unit told him: “If (military intelligence) asks you to do this, it needs to be done. They’re in charge, follow their orders.” He said he now knows that those orders were unlawful, but “at the time my understanding is that they were (lawful), or I wouldn’t have done them,” he said. Do you agree with the sentence or do you think there was any merit to his defense that he was following orders?

Part III: Wednesday May 22

Please comment on two of your classmates’ responses to the Abu Ghraib case.

Assignment 6

Please give a short, clear, and precise answer for each of the following questions by Sunday, May 12, 2013:

1. What is the difference between criminal law and tort law?

2. What are the conditions for strict liability and negligence?

3. What does it mean that an event A caused another event B? Give an example.

4. What is legal causation? Give an example.

5. What were the reasons for the court's decision in Lynch vs. Fisher? Do you agree - why or why not?

6.What were the reasons for the court's decision in Palsgraff vs. LIRR? Do you agree - why or why not?

Comment on Assignment 4

Comment on the Native American Killing a Wendigo:

In this case, it is important to make a distinction between excuse and justification. If the defense claims justification on the basis of self-defense or defense of others, as some of you arguing on this side did, it means that the defendant did the right thing given the circumstances and his state of mind. The problem with this is, as most of you on the other side noted, that there was no immanent danger and the defendant chased the victim. Also, keep in mind that there are no “degrees” of justification, if a justification is used successfully it leads to an acquittal.

If the defense argues excuse, they are going for less punishment. There is a good chance that today the defense could argue for a “cultural defense,” which lessens the punishment. In this defense it has to be proven that there is indeed a cultural belief that makes the defendant less responsible, and this is usually treated as an excuse. An excuse lessens punishment, so in proportion as the defendant is less responsible he or she may receive less punishment. This can be manslaughter instead of murder, and punishment may be reduced all the way down to probation.

One may argue, as some of you did, that the defendant lacks the mens rea requirement, namely that he never intended to kill a human being, but his intention was to kill a monster. If the mens rea requirement is lacking, the prosecution cannot even make a case. The problem here is that the defendant chased and killed the victim intentionally, so here we need a definition of the scope of mens rea, whether it pertains to the intention to kill, or whether it pertains to the defendant’s perception of the nature of the victim, which could again lead to a cultural defense.

Just on a side note: Killing a monster is an act that routinely occurs in action and horror movies, and the audience typically not only approves of this action, but deems the person killing the monster a hero. – Think about it next time you see an action movie.

When I gave this assignment, I withheld some information. The assignment was based on a real case in Canada, Regina v. Machekequonabe (28 O.R. 309 [1897]). In this case the victim was the defendant’s father. Why do you think I withheld that information? Do you think a judge would withhold this information?  Why or why not? 

Assignment 5

Part I (your argument) due April 21

Part II (your rebuttal) due April 25

Please post your rebuttals as comment under the argument of the person whose argument you rebut.

Stanley Tookie Williams was an early leader of the ‘Crips’, a notorious American street gang which had its roots in South Central Los Angeles. He was convicted of three murders in 1979. While on Death Row in California, Williams became an anti-gang activist, he renounced his gang affiliation and apologized for the Crips' founding, while maintaining his innocence of the crimes for which he was convicted. He co-wrote children's books and participated in efforts intended to prevent youths from joining gangs. In late 2005, a campaign began to urge the Governor of California, Arnold Schwarzenegger, to grant clemency for Williams in consideration of his work as an anti-gang activist and asserted "redemption." Thousands of people signed online petitions calling for Schwarzenegger to commute the death sentence. Those who campaigned against the execution included celebrities, politicians, and Nobel laureates. In early November, 2005, Williams' attorneys filed his formal petition for executive clemency, as well as a motion to obtain new evidence. On December 12, 2005, Schwarzenegger denied clemency for Williams, and he was executed via lethal injection on December 13, 2005. 

Suppose you had to argue on behalf of Schwarzenegger, against clemency for Williams, or in defense of Williams’ request form executive clemency. Please check in the tables below for which side you are supposed to argue and whose arguments to rebut. Your argument should include reference to theories of punishment and reasons for or against capital punishment.

 

Against clemency:	rebuts arguments by
Sheneika D	Karen A
Austin P	Diana S
Andrew L	Gelicia S
Anthony K	Tshering P
Kanchan K	Danny C
Dr. Albrecht	Jairo J

 

In favor of clemency	rebuts arguments by
Karen A	Austin P
Diana S	Andrew L
Gelicia S	Anthony K
Tshering P	Kanchan K
Danny C	Sheneika D
Jairo J	Austin P

 

 

Comments on Kadish and the Voodoo case

Ad 1) Most of you correctly pointed out that according to the given definition (MPC 5.01) Victor could indeed be convicted of attempted murder of his wife. He has the intent to kill his wife, and by stabbing the doll he engages in an act he believes to result in her death. Note that this definition focuses on what the defendant believes to be the consequences of his action, and not the fact which result can or does actually occur. You should be aware that the MPC is a recommendation that may or may not be adopted as statute. In most States Victor would not be convicted because the law does not recognize that Victor’s act could possibly kill his wife. It does not make any difference if the wife dies, unless it can be proven that her death is in fact caused by voodoo (which is impossible).

Ad 2) For Kadish this case falls under “crimes of impossibility,” parallel to Kadish’s example of Moriarty shooting at a cutout resembling Sherlock Holmes. Kadish points out that in this case the actor has the intent to cause harm and acts in a way he or she believes to achieve the harm intended. The fact that the harm cannot possibly occur is not known to the actor, nor intended by the actor, nor in his control, but this is a lucky circumstance for the victim.

Ad 3) Kadish draws attention to the legal practice of inflicting lesser punishment if by chance the intended harm does not occur. Kadish emphasizes that in cases of attempts or impossible crimes the actor is acting with intent to succeed, hence he is responsible for the act in the same way as a person who achieves the intended result.  Here, Victor acts on his intention to kill his wife, so he does not really act any differently than a person who intends to kill his wife, aims a gun and pulls the trigger. Both have the intent and both act with intent, both believe that their action will cause death, and both do the best to succeed in their act. The difference is that Victor’s act cannot possibly cause the wife’s death. If the husband who shoots his wife causes the wife’s death, he will be charged with murder and receive a severe sentence. If he commits the same act, but by chance (and not due to his decision) the wife survives, he gets a lesser punishment, usually half. Most jurisdictions would give Victor either no punishment or the lesser punishment for attempt. Kadish claims that the difference in punishment is not related to the actor’s responsibility. Kadish argues that the doctrine is not rational, because it does not fulfil any of the purposes of criminal punishment, namely to be a deterrent (on a utilitarian basis) or to inflict just punishment (retribution). The unintended failure is in a way rewarded by the diminished punishment. So on both accounts, the purpose of deterrence and retribution, the doctrine is not “rationally defensible.”

Ad 4) Please note that throughout the article it appears as if Kadish wants to abolish the harm doctrine. He does not – he argues that though this doctrine is not rationally justifiable, it has intuitive appeal. He compares a parent’s punishment for a child that almost spilled milk with the punishment of a child that actually spilled milk. This is more obvious if you compare a teenager who almost crashed the family car (but the car has no scratch) with a teenager who actually crashed the family car, even if both cases were the result of the teenage driver texting while driving. Most likely the teenager who actually crashed the car would get the more severe punishment.

There are side discussions, which I picked up in some comments. Please look at my comment on Danny C’s blog for Kadish’s discussion of Nagel, my comment on Diana S’s blog for reference to People v. Dlugash, and my comment on Andrew L who brought up the concept of “lex talionis” (an eye for an eye).

Comments on Peterman and Valle

All of you did a very nice job on this assignment. The crux here was to show that both actus reus and mens rea are present. Remember that attempted crimes also require both elements. This made it difficult for the prosecution. Most of you claimed that the fact that the defendant took action by going to the location constitutes the actus reus element. An objection to this is that this act is at best incomplete, it lacks the important part of the attempted rape, and as Austin remarked, we cannot be sure that the defendant would not have desisted last minute. Danny argued that the failure to succeed in the crime is not intended, but due to outside factors, analogous to a person who shoots another but fails to hit the target. Here one can object that a person accused of attempted murder by shooting someone and failing to kill the victim has to actually pull the trigger, besides showing the intent. It is convincing that Peterman’s actions show the intent to molest a child, but Andrew correctly pointed out that sex crimes involving minors do not need proof of intent as they fall under the strict liability rule, that means that only actus reus needs to be proven. And that is the problem in this case.

Not all of you commented on the recent case of the NYC police officer. This case is similar insofar as the defendant, Valle, did not actually kidnap and eat woman, though he talked about it on the internet. Even if his internet chat can be taken as “planning to kidnap and cannibalize” women, he did not actually commit the act. What may have persuaded the jury to find Valle guilty is that he fantasized and talked about actual women he knew. He used Police resources to retrieve information about these women (a crime for which he is also charged), and he met with one of them for coffee. But here it is still difficult to see proof of actus reus. Another difference between this case and Peterman is that Valle was charged with conspiracy to abduct and cannibalize women, and the very notion of conspiracy seems to elude the actus reus element as “muscular movement…”

Both cases share that most people would find of the defendants’ thoughts repulsive, and most of us intuitively think that it is better that neither of them had the chance to complete the crime. But legally I find this rather problematic, for if the law permits to convict people based on mere mens rea and the assumption what the defendant could or would have done, it opens the door to many unjustified convictions.

Peterman was indeed convicted and sentenced to twelve years in prison. To the great surprise of his lawyers, Valle was also found guilty. He has not yet been sentenced, but he can face life in prison.

Assignment 4

A Native American in Northern Canada is charged with manslaughter for killing what he took to be an evil sprit clothed in human form, called a “Wendigo;” in his tribe a Wendigo is believed to eat human beings. The defendant saw what appeared to be a tall human form running in the distance, gave chase, challenged the victim, and then fired.

Prosecutors: Andrew L, Anthony M, Austin P, Gelicia S, Diana S,

Defense: Tshering P, Karen A, Danny C, Sheneika D, Jairo J, Kanchan K

Part I :

Make your case as prosecutor – argue in terms that the defendant is responsible for his act even given the circumstances.

Make your case for the defense – argue that the defendant has a valid excuse or justification for his act.

Due: Sunday, April 7

Homework Assignment 3 Part II:

Due: Thursday, April 11

Rebut the arguments of the opposing side:

Prosecutor	rebuts arguments by
Andrew L	Tshering P
Anthony M	Karen A
Austin P	Danny C
Gelicia S	Sheneika D
Diana S	Jairo J
Dr. Albrecht	Kanchan

Defense	rebuts arguments by
Tshering P	Austin P
Karen A	Gelicia S
Danny C	Diana S
Sheneika D	Andrew L
Jairo J	Anthony M
Kanchan K	Andrew L

Assignment 3

Due:  March 24

Case:

Victor strongly believes in voodoo and hates his wife so much that he wants to kill her. One day he takes “sacred” needles and repeatedly stabs a voodoo doll that resembles his wife, believing that this action will kill her. He is then overcome with remorse and goes to the police and confesses to the murder. (Please read the full description on p. 490 under question 6).

The Model Penal code*, section 5.01 gives the following definition of attempted crimes:

“(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a  course of conduct planned to culminate in his commission of the crime.”  

Questions: 

1. Under this definition, can Victor be convicted of attempted murder?
2. How would Kadish analyze this case?
3. What is Kadish’s criticism of the “harm doctrine” and how does it apply to this case?
4. According to Kadish, why do we still have the “harm doctrine”? 

---

* Please note that this is the Model Penal code (if you don’t know what that is, please look it up, p. 473).

"Cannibal Cop"

Did you read about the case of the “cannibal cop?”

On March 12,2013, Gilberto Valle, a New York police officer, was convicted of conspiring to kidnap a woman. In internet chat rooms, Valle had expressed disturbing thoughts of abducting and eating women. Although he never followed through with any of these acts and no woman has actually been harmed, the jury found that the prosecution proved that Valle had plans to carry out his fantasies. The defense maintains that he was convicted for "ugly thoughts." Mr. Valle is married with a baby girl and could face life in prison.

You can find more at

http://www.nytimes.com/2013/03/13/nyregion/gilberto-valle-is-found-guilty-in-cannibal-case.html?_r=0

 The concepts of actus reus and mens rea are very relevant here. Do you think that Valle was properly found guilty?

Please post your comment below.

Assignment 2

Assignment 2

Part 1 due:  March 17

Part 2 due: March 20

Part 1: Due: March 17

Case:

Police had information that Steven Peterman, age 45, was involved in a child pornography ring. Police worked with a female acquaintance of Peterman to arrest him. They invented a ten-year-old girl, whom the acquaintance then pretended to know. The woman indicated she would give Peterman access to the girl if he would come to her residence. Peterman arrived at the woman’s home with several photographs, characterized by police as child pornography, along with a variety of sex toys. Peterman was arrested and is now charged with attempted rape of a child.

Prosecutors: Karen A, Danny C, Sheneika D, Jairo J, Kanchan K, Tshering P

Defense lawyers: Andrew L, Anthony M, Austin P, Gelicia S, Diana S, Luis T

Prosecutors:

You have to argue that Peterman is guilty of the charges and convince the jury of his guilt. Recall the concepts of actus reus and mens rea and apply them to this case. Explain their relevance for Peterman’s guilt. Explain the notion of an attempted crime and convince the jury that Peterman is indeed guilty of attempted rape. In your conclusion, you should note the legal and moral implications of the jury’s decision to find Peterman guilty.

Make your case in about 200-250 words, and post it on our class blog as “new post” with the title “Peterman/ Prosecution”.  

Defense lawyers:

You have to argue that the charges against Peterman do not hold up and convince the jury of the defendant’s innocence (please keep in mind that you don’t have to be friends with Peterman, but that it is your sworn duty to defend your client to the best of your ability). Recall the concepts of actus reus and mens rea and apply them to this case. Explain their relevance for the fact that Peterman cannot be properly charged with this crime. Explain the notion of an attempted crime and convince the jury that Peterman cannot properly be found guilty of attempted rape. In your conclusion, you should note the legal and moral implications of the jury’s decision to find Peterman not guilty.

Make your case in about 200-250 words, and post it on our class blog as “new post” with the title “Peterman/ Defense”. 

Part 2: Due: March 20

Prosecutors:

Karen A comments on Andrew L

Danny C comments on Anthony M

Sheneika D comments on Austin P

Jairo J comments on Gelicia S

Kanchan K comments on Diana S
Tshering P comments on Luis T

Prosecutors:

Write a brief rebuttal to the defense attorney’s argument. Please post your rebuttal as comment under the post. The total word count of your rebuttal should be about 150 words.

Defenders

Andrew L comments on Danny C

Anthony M comments on Sheneika D

Austin P comments on Jairo J

Gelicia S comments on Kanchan K

Diana S comments on Karen A

Luis T comments on Tshering P

Defense lawyers:

Write a brief rebuttal to the prosecutor’s argument. Please post your rebuttal as comment under the post. The total word count of your rebuttal should be about 150 words.

  

All of you:

Feel free to comment on the rebuttal of your argument!

Assignment 1 - Amendment: (Change of due date)

Assignment 1 - Amendment: (Change of due date)

It took us a while to get started, and some students registered late, so the deadline for this assimgnent has changed a little bit:

Please answer the following questions:

1. Do you think that the defendants in this case are guilty of murder (see the penal code on p. 2) or were they justified in their action? (See definition on p. 2). Why or why not?
2. Do you think that the actions of the crew were morally right? Why or why not?

 

Please post your response (with the title “Life Boat”) to these two questions on your blog no later than Sunday, March 10, 2013.

1. 3.   What would a utilitarian philosopher argue, and what would a deontological philosopher, such as Kant, say? (For the ethical theories, see p. 7-14)

 

Please post your response to this question by Wednesday March 13. 

Of course you can post your answer to all three questions by Sunday.

Assignment #1

Please read p. 3-14 in the book.

The case of the Overcrowded Life Boat is posted on Blackboard under “Course Documents” in two documents, page 1 and page 2).

The first two lectures, Introduction Part I and Introduction Part II cover this material.

Please answer the following questions:

1. Do you think that the defendants in this case are guilty of murder (see the penal code on p. 2) or were they justified in their action? (See definition on p. 2). Why or why not?
2. Do you think that the actions of the crew were morally right? Why or why not?
3. What would a utilitarian philosopher argue, and what would a deontological philosopher, such as Kant, say? (For the ethical theories, see p. 7-14)

Please post your response (with the title “Life Boat”) on your blog no later than Sunday, March 10, 2013.

Welcome and let's get started!

Welcome to this Philosophy of Law course!

You can find the syllabus on Blackboard, there will be some amendments to the syllabus in the course of this week.

In order to get this online class going, please do the following as soon as possible:

1. If you have not done so yet, please send me an email to

                        valbrecht11@gmail.com

so I can create an address book for this class. Please send your email from an email account that you check regularly. This will be an important way for us to communicate.

2. Please go to Google blogger and create your own blog for this class. You can also do so by clicking on “Create Blog” in the upper right corner of this page.

Just follow the instructions. If you don’t have a gmail account you may have to create one first.

When you choose a “title” please choose your first name and last name initial, so I will be able to identify you.

Once your blog is created, go to “settings” and choose if you want your blog to be on blogger listings or search engines to find it. Select your choice. 

Finally:

Once you have a blog, please email me your blog address (e.g., philosophlaw.blogspot.com), so I can add you to the class blog.

If you have trouble with any of this, please email me!

Thanks, and I’ll see you soon on the Blog!