Arguing about Law An Introduction to Legal Philosophy

ISBN-10: 0534543529
ISBN-13: 9780534543525
Edition: 2nd 2001 (Revised)
Authors: Andrew Altman
List price: $156.95
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Description: Using the rule of law as its main theme, this text shows how abstract questions and concepts of legal philosophy are connected to concrete legal, political, and social issues. The text addresses several modern controversies and challenges students  More...

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Book details

List price: $156.95
Edition: 2nd
Copyright year: 2001
Publisher: Wadsworth
Publication date: 4/12/2000
Binding: Paperback
Pages: 282
Size: 6.75" wide x 9.50" long x 0.75" tall
Weight: 1.100
Language: English

Using the rule of law as its main theme, this text shows how abstract questions and concepts of legal philosophy are connected to concrete legal, political, and social issues. The text addresses several modern controversies and challenges students to consider both sides of an argument, using sound, reasoned thinking.

The Rule of Law
Impeachment and the Rule of Law
Arbitrary Government and the Principles of Legality
Government Under Law
Government by Rules
Fair Warning and the Formal Features of Legal Rules
Due Process
The Power of the People
Corruption
Vengeance
Liberty and Prosperity
Ancient Liberty
Liberty and Prosperity in the Modern Era
Hobbes and Austin: The Sovereign as Above the Law
The King versus Parliament
Philosophical Confusions
A Round Square?
Austin's Contribution
Human Nature
The Crooked Timber of Humanity
Republican Government
Hobbes versus Kant and Madison
Substantive versus Legal Justice
The Impeachment Controversy: Background
Power, Privacy, and Prosecution
The Real-World Rule of Law
Political Trials
The Impeachment Trial
Should the Rule of Law Apply?
The Trial of the President
The Role of Politics
The Vagueness Problem
Law and Morality
A Common Saying
Judgment at Nuremberg
Historical Background
Criticisms of the Trial
Justifying the Trial
Assessing the Trial
Natural Law Theory: Overview
Traditional Natural Law Theory: Background
Aquinas's Theory of Law
Law and the Good
Assessing Aquinas
Fuller and Fidelity to Law
The Inner Morality of Law
Assessing Fuller's Inner Morality
Law and Social Purpose
Dworkin's Interpretive Theory
Rules and Principles: The Idea of Fit
Fitting the Fourth Amendment: Privacy
Olmstead and Beyond
The Role of Morality
The Challenge of Skepticism
Assessing Dworkin
Legal Positivism: Overview
Austin's Theory of Law
Law as Command
Assessing Austin
Hart: Law as Primary and Secondary Rules
Types of Legal Rules
Legal Obligation: Government and Gunman
Primary and Secondary Rules
Assessing Hart
Summary: Natural Law versus Positivism
The Constitution
Popular Government and the Rule of Law
The Undisciplined Public
The Constitutional Design
The "Troublesome" Provisions
The Supreme Court and Judicial Review
Jefferson's View
Judicial Review as Antidemocratic
The Historical Record
Judicial Self-Restraint
Judicial Review and the Rule of Law
The Judiciary as Policeman
The Judiciary as Expert Interpreter
Judicial Review and Democracy
Ely's Argument: Perfecting Democracy
Criticisms of Ely: The Political Process
Ackerman's Argument: The Sovereign People
Criticisms of Ackerman: The Rule of Law
Constitutional Interpretation: Implicit Rights?
The Right to Privacy: Griswold v. Connecticut
Criticisms of Griswold
Framers' Intent
Original Understanding
Bork's Theory
Criticisms of Bork: Naked Power Organs
Dworkin and the Constitution
Criticisms of Dworkin
Bork versus Dworkin
Whose Morality?
Judgment and Action
The Supreme Court versus Society
Private Law: Torts, Contracts, and Property
The Functions of Private Law
The Traditional Public-Private Distinction
Criticisms of the Public-Private Distinction
Legal Realism and the Politics of Private Law
Property and Progress: The Labor Injunction
Assessing the Realist Challenge
The Traditional Contract-Tort Distinction
Criticisms of the Contract-Tort Distinction
Defenses of the Contract-Tort Distinction
Assessing Traditionalism
Subjective and Objective Approaches in Tort Law
A Case of Self-Defense
The Actual Person or the Reasonable Person?
Subcategorizing
The Duty to Aid
The Common-Law Approach
The Ames Rule
Feinberg and the Right to Assistance
Epstein and Bright Lines
Criminal Law
Torts and Crimes
A Utilitarian Approach
Bentham's Principle of Utility
The Utilitarian Aims of Punishment
Criticisms of the Utilitarian Approach
A Retributivist Approach
Justice and Desert
Why Punishment Is Deserved
Criticisms of Retributivism
The Therapeutic Model
Rehabilitation, Not Punishment
Criticisms of the Therapeutic Model
Amount of Punishment
A Utilitarian Approach
Criticisms of the Utilitarian Approach
A Retributivist Approach
Criticisms of Retributivism
Davis's Version of Retributivism
Criticisms of Davis
Mens Rea versus Strict Liability
The Guilty Mind
Objective and Strict Liability
Strict Liability: Against
Strict Liability: For
Limits of Criminal Law
The Public-Private Distinction
J. S. Mill and the Harm Principle
The Devlin-Hart Debate
Law and Economics
The Economic Analysis of Law
Economic Rationality
Rational Action
An Example: The Rational Athlete
Rationality and Uncertainty
Economic Efficiency
Utilitarianism and Beyond
Pareto's Concepts of Efficiency
The Limitations of Pareto's Efficiency Concepts
Kaldor, Hicks, and Posner
Scarcity and Efficiency
The Efficiency of the Common Law
Contract Law
Negligence and the Hand Formula
Property
The Coase Theorem
An Efficiency Explanation of Common Law
Posner's Argument
Criticisms of Posner
Social Morality versus Efficiency
The Scientific Status of Law and Economics
Scientific Method
Is Law and Economics Scientific?
The Evaluation of Law: Should Law Maximize Wealth?
The Biggest Pie?
Other Virtues of Wealth Maximization?
Wealth Maximization and the Poor
Political Disagreement in Law and Economics
What Kind of Market?
Conservatives versus Liberals
Is Efficiency a Neutral Value?
The Value of Efficiency
Dworkin's Critique of Efficiency
Taking Efficiency Seriously
Feminism and the Law
Feminism versus the Traditional View of Women
Woman's Place
The Feminist Rebellion
Types of Feminism
Two Central Issues
Liberals, Radicals, Progressives, and Conservatives
The Question of Patriarchy
Discrimination and Oppression
Is Patriarchy a Thing of the Past?
The Question of Privacy: A Radical View
The Problems with Privacy
Fighting "Private" Oppression
Women's Labor
Abortion Rights: Beyond Privacy to Equality
Abortion and the Indigent
Equality: Eradicating Women's Oppression
Abortion Rights: A Liberal View
Defending the Right of Privacy
Liberal Equality
Abortion Rights: The Liberal or Radical Approach?
The Legal Argument
The Moral Argument
The Difference Debate
Pregnancy Benefits
Special Treatment or Equal Treatment?
Women's Values?
Pornography: Free Speech and Women's Rights
A Linchpin of Patriarchy
Protecting Pornography
Silencing Women
The Harm of Pornography
Pornography on Trial: American Booksellers v. Hudnut
The Ordinance
The Ruling: Easterbrook's Opinion
MacKinnon's Criticisms
The Psychology of Pornography
Evidence of Harm?
Patriarchy Revisited: The Role of Reason
Beyond Statistics
Is Reason "Male"?
Race and American Law
Race, Citizenship, and Identity
Jim Crow and the One-Drop Rule
Separate but Equal: The Plessy Case
A Reasonable Dissent from Plessy: Law and Scientific Racism
Beyond Separate but Equal: The Brown Case
The Small Steps to Brown
Brown: Constitutional Equality
The Civil Rights Revolution
Beyond Litigation
Social Agitation: Martin Luther King, Jr. versus George Wallace
The Civil Rights Act of 1964
The Voting Rights Act: Race and Democracy
The Black Power Movement
The Idea of Institutional Racism
Racial Discrimination: Intent versus Disparate Impact
Critical Race Theory
Overview
Racism and the Rule of Law
Affirmative Action
The Law and Politics of Affirmative Action
Individual Rights
Social Effects: Academic Values and Racial Identities
Critical Legal Studies
The Crits: An Introduction
Law, Power, and Hierarchy
Against the Rule of Law: Politics, Morality, and Law
Crits, Feminists, and Critical Race Theorists
Crits and Conservatives
Legal Reasoning: A Mainstream Account
Law and Authority
Law and Reason
Reasoning: Legal and Practical
The Doctrine of Precedent: Stare Decisis
Legal Reasoning: The Attack Begins
Realism and Formalism
Indeterminacy
So Long, Stare Decisis
An Example: Hardwick's Right to Privacy?
Clusters of Rules
Justification and Motivation
Reluctant Realists
Domesticating Realism
Legal Reasoning: The Crits Attack
Law as a Patchwork
The Contradictions of Private Law
Law, Liberty, and Liberalism
Liberalism and the Rule of Law
Unger and the Contradictions of Liberalism
The Mainstream versus the Crits
Critics of the Crits
Dworkin and Legal Reasoning
The Crits' Response
Competition and Contradiction: Dworkin Replies
The Crits' Last Stand

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