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Date
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Topic
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Assignment
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Comment
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September 5
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Introduction to the Course
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Lon Fuller, The Case
of the Speluncean Explorers (html) or
PDF File
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Be prepared to discuss
Fuller’s hypothetical case. How
would you resolve this case? Why?
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September 12
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Natural Law and Legal Positivism: An
Introduction to the Issues
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H.L.A. Hart,
Positivism and the Separation of Law and Morals
&
Lon Fuller,
Positivism and Fidelity to Law--A Reply to Professor Hart
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These two articles were
written in the 1950s—before the publication of Hart’s The Concept of Law. What is at stake in the “what is law”
debate? Does the answer to the
“what is law” question have any implications for legal practice, e.g. for
how judges should decide cases?
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September 19
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The Method of Fit and Justification
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Ronald
Dworkin, Hard Cases, Riggs v. Palmer
(html
version of Riggs)
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Is Dworking
a “positivist” or a “natural lawyer” or something else? What method does “Hercules” (the
mythical judge) use to decide cases?
Do you agree with Dworkin’s analysis of Riggs v. Palmer?
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September 26
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Deontology: Kant’s Ethics
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Kant, Groundwork of
the Metaphysics of Morals
Onora O’Neill, A Simplified Account of Kant’s Ethics
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The “Groundwork” is one
of the most important texts in the history of moral philosophy. What is Kant’s idea of “autonomy”? What are the three formulas of the
moral law? Be sure to read
O’Neill’s essay—it is short, accurate, and illuminating.
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October 3
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Deontology: Contractualism
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Locke, Second Treatise
of Government
Chapter 2
Chapter 5
Chapter 7
Chapter 8
Chapter 9
Chapter 11
Fred, D’Agostino, Original Position, Stanford Encyclopedia
of Philosophy
Fred
D’Agostino, Contemporary Approaches to the
Social Contract, Stanford Encyclopedia of Philosophy
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Locke’s Second Treatise
has been hugely influential. Feel
free to read Locke somewhat “lightly.”
(You might want to focus on Chapters 2 and 5.) The two short pieces by D’Agostino give us a “quick and dirty” introduction
to John Rawls’s theory, which substitutes agreement in the original
position for a social contract in a state of nature. Why did Rawls abandon the “state of
nature”?
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October 10
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Consequentialism:
Bentham & Mill’s Utilitarianism
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Assigned reading:
Walter Sinnott-Armstrong, Consequentialism, Stanford
Encyclopedia of Philosophy
Brad
Hooker, Rule Consequentialism, Stanford Encyclopedia of Philosophy
Optional Reading:
Bentham,
Principles of Morals and Legislation
Mill, Utilitarianism
Chapter One
Chapter Two
Chapter Three
Chapter Four
Chapter Five
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The first two pieces
give you an overview of “act consequentialism” and “rule
consequentialism.” Read Sinnott Armstrong & Sections 1-4 of Hooker.
Some basic questions:
What is
“utilitarianism”? What is
“utility”? What is the difference between act and rule
consequentialism?
The Bentham and Mill
readings are optional.
Jeremy Bentham has had
an enormous influence on contemporary legal theory, even though his
“hedonistic utilitarianism” has been superceded
by other forms of consequentialism.
Mill has been less influential in law, but even more of a force in
contemporary philosophy.
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October 17
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Consequentialism:
Welfarism
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Legal
Theory Lexicon: Social Welfare Functions
Kaplow &
Shavell, Fairness versus Welfare
(focus on pp. 1-38
& pp. 52-62)
Optional reading:
Kaplow &
Shavell, Any Nonwelfarist Method
Solum,
Public Legal Reason pp. 1485-1500.
I will lecture on the
material in the optional reading.
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Normative law and
economics is one of the most influential normative theories of law. We will discuss Pareto Efficiency and Kaldor Hicks Efficiency, and then move to Social
Welfare Functions and the readings from Kaplow and Shavell.
What is welfarism? Is welfarism a form of
consequentialism? Of
utilitarianism? What theory of
utility do welfarists endorse? How is welfarism different from Pareto
Efficiency? From Kaldor Hicks?
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October 24
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Virtue Ethics &
Aristotle
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Richard Kraut,
Aristotle’s Ethics, Stanford Encyclopedia of Philosophy
Rosalind
Hursthouse, Virtue Ethics, Stanford Encyclopedia of Philosophy
Optional additional
reading:
Fred Miller,
Aristotle’s Political Theory, Stanford Encyclopedia of Philosophy
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This week we will
explore the third family of moral theories—aretaic or virtue-centered
ethics. What are the human
excellences or virtues? What role
do the virtues play in Aristotle’s ethics? In particular, what role does
“phronesis” or practical wisdom play?
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October 31
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Virtue Jurisprudence
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Solum,
Virtue Jurisprudence: A Virtue-Centered Theory of Judging
Richard Kraut,
“Justice in the Nicomachean Ethics” from Aristotle: Political Philosophy
Solum,
Natural Justice
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November 7
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Natural Law and Legal
Positivism Revisited
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Excerpts from Raz
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November 14
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Public Reason and
Incompletely Theorized Agreements
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Legal
Theory Lexicon: Public Reason
Solum,
Public Legal Reason (pp. 1465-1485)
Additional Optional
Readings:
Rawls on Public Reason
Sunstein,
Incompletely Theorized Agreements in Constitutional Law
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November 21
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No Class
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November 28
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Democracy
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Tom Christiano, Democracy, Stanford Encyclopedia of
Philosophy
Excerpts from
David Estlund, Democratic Authority
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December 5
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Student Presentation
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Hanah
Volokh’s Paper
Tony Biagioli’s Paper
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