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[ Main Page Last Revised: Wednesday, November 14, 2007]

Legal Reasoning and stare decisis:

The following include historically important cases in the law of tort--both in the United States and in Great Britain. The American series, culminating in MacPherson , is discussed by Professor Radin (below) and by Edward H. Levi, An Introduction to Legal Reasoning (Chicago: 1948). The (overlapping) British series, culminating in Donoghue, is discussed in detail by Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: 1978) which is now in paperback. These cases, reproduced in their entirety, are useful for exploring the questions of judicial discretion and the functioning of precedent in the law. (I have used an Optical Character Recognition program to create editable text, and then converted that into HTML formatted text; while I have checked the results for errors caused by the OCR program, errors undoubtedly remain.)

• Dixon against Bell [5 M. & Sel. 198 (1816): pp. 198-200]

• Langridge v. Levy [2 Meeson & Welsby 519 (1837); pages 519-532]; Exchequer of Pleas, 1837.

• Winterbottom v. Wright [10 Meeson & Welsby 109 (1842); pp. 109-116]; Court of Exchequer, 1842.

• Longmeid v. Holliday [6 Ex. 761 (1851); pp. 761-768]; Exchequer of Pleas, 1851.

• Thomas and wife against Winchester [6 N. Y. 397 (1852); pp. 397-412]; N. Y. Court of Appeals, 1852.

• George v. Skivington [L. R. 5 Ex.1 (1869); pp. 1-5]; Court of Exchequer, 1869.

• Loop v. Litchfield [42 N. Y. 351 (1870); pp. 351-361]; N. Y. Court of Appeals, 1870.

• Losee v. Clute [51 N. Y. 494 (1873); pp. 494-497]; N. Y. Court of Appeals, 1873.

• Devlin v. Smith [89 N. Y. 470 (1882); pp. 470-479]; N. Y. Court of Appeals, 1882.

• Heaven v. Pender [11 Queen's Bench Division 503 (1883); pp. 503-517]; Court of Appeal, 1883.

• Huset v. J. I. Case Threshing Mach. Co. [120 Fed. Rep. 865 (1903); pp. 865-873]; 8th Circuit Court of Appeals, 1903.

• Kuelling v. Lean Mfg. [183 N. Y. Rep. 78 (1905); pp. 78-91]; N. Y. Court of Appeal, 1905.

• Torgesen v. Schultz [192 N. Y. Rep. 156 (1908); pp. 156-161]; N. Y. Court of Appeal, 1908.

• Statler v. Ray Mfg. Co. [195 N. Y. Rep. 498 (1909); pp. 478-485]; N. Y. Court of Appeal, 1909.

• Cadillac Motor Car Co. v. Johnson [221 Fed. Rep. 801 (1915); pp. 801-806]; 2nd Circuit Court of Appeals, first appeal, 1915.

• MacPherson v. Buick [217 N. Y. 386 (1916); pp. 382-401]

• Johnson v. Cadillac Motor Car Co. [261 Fed. Rep. 878 (1919); pp. 878-887]; 2nd Circuit Court of Appeals, second appeal, 1919.

• Donoghue v. Stevenson, [1932] A. C. 562, pages 562-623, is complete in three parts; you will want to read all three parts. The footnotes have been reformatted (--regretably, since my way of handling them is more cumbrous than the Court's more efficient way). The original pagination of the report is indicated in brackets.
  1. Donoghue v. Stevenson Part 1: pages 562-578

  2. Donoghue v. Stevenson Part 2: pages 578-599

  3. Donoghue v. Stevenson Part 3: pages 599-623

• Grant v Australian Knitting Mills [1936] A. C. 85; on appeal from the high court of Australia.

  Via link to University of Tasmania, School of Law, Torts internet site; be warned that this report of the case might not be complete.

Discussion of these cases:



• Max Radin, "Case Law and Stare Decisis: Concerning Präjudizienrecht in Amerika " (1933) [33 Columbia Law Review 199 (1933): pp. 199-212]

• Boardman's Critique of Max Radin's argument; accompanied by: a very brief passage from G. Edward White, Tort Law in America: An Intellectual History (Oxford: 1985); some notes on Atiyah and Summers, Form and Substance in Anglo-American Law (Oxford: 1987); brief remarks on the Ratio Decidendi of a case, by Rupert Cross, Precedent in English Law (Oxford: 1977-3rd edition); and excerpts from Julius Stone, "The Ratio of the Ratio Decidendi," 22 Modern Law Review 597 (1959).

• Boardman, “Comments on the MacPherson series of cases.” (draft)

• Boardman, “After MacPherson: Comments on Strict Liability in Torts.” (draft)

• Boardman, Lecture notes on H L A Hart, The Concept of Law (Oxford: 1961)

• LINK to discussion by Neil MacCormick, Regius Professor of Public Law, University of Edinburgh, "Donoghue v. Stevenson and Legal Reasoning," from Donoghue v. Stevenson: The Paisley Papers (The Continuing Legal Education Society of British Columbia).

Balkinization

A blog concerned with constitutional and other timely legal issues hosted by Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School.

Tort Reform

New York Times, 6-7-99, on tort reform in Texas.
New York Times, 6-2-99, on tort reform in Alabama.

CUSTOM and the Law

Bracton on the Laws and Customs of England
"Henry of Bracton's Thirteenth Century work, originally titled De Legibus Et Consuetudinibus Angliae, has been made available by Harvard University's Ames Foundation and Law Library, and Cornell University's Legal Information Institute. This work is an attempt to describe English law based on 'the combination of Roman and canon law that was taught in the universities in Bracton's time.' It can be browsed or searched in either English or Latin, or accessed via a 'Calendar' (table of contents). Both framed and unframed versions are available, with the framed version allowing for simultaneous viewing of the Latin and English texts. The Latin text of this version was provided by George Woodbine; the work was translated by S.E. Thorne." --The Scout Report.

Custom in the Common Law of England
Brief excerpts from Arthur Hogue, Origins of the Common Law, (LibertyPress: 1966, 1985)

The History of the Common Law of England by Matthew Hale, 1713
Sir Matthew Hale (1609-1676) was Lord Chief Justice; Gerald Postema has recently expounded Hale's views on the continuing importance of custom to the law, in Postema, Bentham and the Common Law Tradition (Oxford: 1986).

Bickel, The Morality of Consent: excerpt
Pages 108–11 from Alexander M. Bickel, THE MORALITY OF CONSENT: Civil Disobedience, Revolution, and the Legal Order (Yale: 1975) published posthumously,

Jury NULLIFICATION

Prosecutors from the state of New York discuss jury nullification and prosecutorial discretion
Excerpt from a story by Esther B. Fein from The New York Times, Friday, 6-27-97

United States v. Thomas (2d Cir Court of Appeals; Aug., 1966)
A fascinating case and an illuminating discussion by the Second Circuit Court of Appeals of jury nullification and what a judge may do to prevent it.
  For further discussion of jury nullification, see: Mortimer Kadish and Sanford H. Kadish, "On Justified Rule Departures by Officials," 59 California Law Review 905 (1971); see also their Discretion to Obey: A Study of Lawful Departure from Legal Rules (Stanford: 1973).
"JURY NULLIFICATION A CONSTITUTIONAL MANDATE or The Law Is What The Jury Says It Is," By Godfrey Lehman: When Juries Defy the Law!


DEATH PENALTY investigations:

Link to Chicago Tribune investigation (June 11 & 12, 2000) of Texas death penalty practices finds many cases compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing and dubious psychiatric testimony.

LINK to the Chicago Tribune, “Trial & Error,” an important investigative series on Prosecutorial Misconduct.

LINK to "TheJusticeProject.org" presentation of Columbia University law professor James S. Liebman's recent study of capital punishment in the US. The June 12, 2000 issue of The Washington Post describes the study as "one of the most exhaustive studies of capital punishment ever" and as having found that "more than two-thirds of America's death sentences are overturned on appeal."

MISCELLANEOUS:

KATHERINE E. FINKELSTEIN reports in the 6-22-00 New York Times that "New York will become the first state to require that nearly all nonviolent criminals who are drug addicts be offered treatment instead of jail time, in an effort to sharply reduce both the number of repeat offenders clogging the courts and the population in the state's prisons and jails."

“Theories of Law,” a talk given to the Philosophy Club (1980)
An attempt to sketch the relationship between a typical legal system and the conventional social morality of its citizens.   (For a more thorough discussion, see my “Coordination and the Moral Obligation to Obey the Law,” 97 Ethics 546 (1987).)

Routine Chicago police brutality in the 1970's and 1980's “ Special prosecutors said Wednesday that scores of criminal suspects were routinely brutalized by police officers on the South Side of Chicago in the 1970's and 1980's, but that extensive legal research persuaded them there was no way to skirt the statute of limitations preventing prosecution. “ After four years, more than 700 interviews and $6 million, the prosecutors said they could prove beyond a reasonable doubt in court at least three cases of torture by the police, involving five former officers, and that they had found credible evidence of abuse in about half the 148 complaints they thoroughly investigated. But they rejected arguments by lawyers for people alleging abuse who said criminal charges could still be filed. . . . “ The prosecutors' long-awaited 292-page report tries to provide closure on a painful chapter in Chicago history, one that has helped create a chasm between black residents and white police leaders, has driven changes in law enforcement procedures and has played a critical role in the national debate over the death penalty. In May, the United Nations Committee Against Torture highlighted the Chicago abuse accusations, complaining of 'limited investigation and lack of prosecution.' “ The political implications were clear from the roster of people questioned in the inquiry, including Mayor Richard M. Daley, who was Cook County's top prosecutor when some of the most egregious complaints were lodged, and his former assistant, Richard A. Devine, now the Cook County state's attorney. . . . “ A few prisoners had cattle prods placed against their genitals, guns shoved into their mouths or plastic typewriter covers held over their heads until they passed out, Mr. Boyle said, adding that most were abused with milder weapons like 'the fist, the feet, telephone books.' . . . ” —From 7-19-06 New York Times, "Inquiry Finds Police Abuse, but Says Law Bars Trials," By JODI RUDOREN; Gretchen Ruethling contributed reporting for this article. 2007: The Problems with Chicago police continue “ Chicago police officers are the subject of more brutality complaints per officer than the national average, and the Police Department is far less likely to pursue abuse cases seriously than the national norm, a legal team at the University of Chicago reported Wednesday. “ The report, 'The Chicago Police Department's Broken System,' comes amid troubled times for the force, the nation's second largest, which is mired in accusations of misconduct and is the subject of open feuding among elected officials who disagree on aspects of its management. … “ According to the new report, rogue police officers abuse victims without fear of punishment, and the lack of accountability has tainted the entire department, resulting in a loss of public confidence. Patterns of abuse and disciplinary neglect were worst in low-income minority neighborhoods, said the authors, Craig B. Futterman, H. Melissa Mather and Melanie Miles. … “ Although a great majority of the department is not abusive, the report said, 'This does not mean that it bears no responsibility,' adding, 'The police code of silence contributes to the machinery of denial.' … “ 'As the numbers detailed above illustrate plainly,' the report said, ' "not knowing" about police abuse in Chicago requires a great deal of active effort.' ” —From 11-15-07 New York Times, "Chicago Police Abuse Cases Exceed Average," By SUSAN SAULNY.

LEGAL HISTORY RESOURCES:
McMaster University Archive for the History of EconomicThought

Tarlton Law Library Guide to Legal History Resources on the Web

The Constitution Society: Founding Documents

The Constitution Society: Liberty Library of Constitutional Classics

The Old Bailey — Online
Various trials at London's central criminal court from 1714 to 1759 are online; eventually, trials from 1674 to 1834 will be available. "Notable Trials" under "About the Proceedings" gives an overview of the judicial system at the time.

Responsibility and Related Topics:

EXCERPT from Director of Public Prosecutions v. Smith, [1960] All E. R. 161 (House of Lords)

Egregious use of an “objective” standard of intent in a famous British case in criminal law. Following the excerpt is a brief, critical comment by Graham Hughes (1964).

EXCERPT: British Law Commission's "Report to the Right Honourable The Lord Gardiner, Lord High Chancellor of Great Britain, 1967"

The Report discusses the use of the “objective” standard of intent in D.P.P. v. Smith, and recommends against its further use in the criminal law.

The Judicial Work of the House of Lords

LINK to the official web site of the House of Lords which provides a brief history and explanation of the appellate function of Britain's Law Lords.

EXCERPT from J.C. Smith, "The Guilty Mind in the Criminal Law"

In an excerpt from his fascinating article in 76 The Law Quarterly Review 78 (1960), Smith suggests that historically, Great Britain began to interpret criminal laws as involving strict liability, and to evince a willingness to depart from the principle of mens rea, as the result of the Court's attempt in R. v. Prince, in 1875, to provide a judicial solution to a clumsily drafted statute.

EXCERPT from Hill v. Baxter [1 Q.B. 277 (1958)]

A curious case (on appeal) in which the judges consider whether a defense of automatism would defeat the requirement of mens rea for a moving traffic violation.

Hart on Responsibility in the Law

Hart sketches why responsibility should play an important role in a legal system.

Brief Explanation of the Criminal Law's Mens Rea.

H. L. A. Hart, from his "Changing Conceptions of Responsibility" (1964)

McNaghten Rules for legal insanity.

Brief explanation from The Oxford Companion to Law (1980) of the historically important M'Naghten Rules. Also an excerpt of a brief discussion by H.L.A. Hart. The rules determined whether one was not legally responsible for some act on the ground of insanity; they famously focused on one's cognitive state to the exclusion of one's capacity to conform himself to the law. Finally, some remarks by Abraham Goldstein in extenuation of the M'Naghten test, as it is actually employed.

PBS's Frontline: a discussion of some of the problems the criminal justice system has in dealing with insanity

The site has, among other things, a PDF copy of "Criminal Justice/Mental Health Consensus Project," a report prepared by the Council of State Governments in collaboration with the Association of State Correctional Administrators, the Bazelon Center for Mental Health Law, the Center for Behavioral Health, Justice & Public Policy, the National Association of State Mental Health Program Directors, the Police Executive Research Forum, and the Pretrial Services Resource Center.
 


Link to 3-11-07 New York Times, "The Brain on the Stand," By JEFFREY ROSEN: Interesting discussion of neuroscience and the law, raising issues of responsibility, punishment, prevention of predicted anti-social behavior, and "theraputic justice." Jeffrey Rosen, a frequent contributor to the New York Times, is the author most recently of The Supreme Court: The Personalities and Rivalries That Defined America.

From 3-4-03 New York Times, "Forcing Mentally Ill on Trial To Take Drugs Is Pondered," By Linda Greenhouse: “An inconclusive Supreme Court argument today [3-3-03] on whether mentally ill criminal defendants may be medicated against their will to make them competent for trial reflected the essential difficulty and delicacy of the mix of law and psychiatry that the case presented. . . . “ [The defendant's court-appointed lawyer, Barry A. Short,] said that although Dr. Sell [the defendant] was incompetent as a legal matter, he was 'medically competent' to understand his situation and make his own decisions. . . . “ 'What is your solution to this dilemma?' Justice Scalia asked Mr. Short. 'We can't try him because his mind is not working properly but you say he's entitled to refuse the drugs that would make his mind work properly. It's just a crazy situation. What can we do about it?' ”

Wisconsin's Felony Murder rule.

Statement of Wisconsin's Felony Murder rule from 93-94 Wis. Stats. (an instance of strict liability in Wisconsin criminal law).

Roe v. Wade [410 U.S. 113 (1973)]:

Syllabus


Court Opinion by Blackmun; Concurrence by Stewart and Dissent by Rehnquist


Concurrences by Burger and Douglas; and Dissent by White (from Georgia companion case, Doe v. Bolton [410 U.S. 179 (1973)])

Links to other abortion cases will be found here.

Conflict between the personal ethics of a health care professional and his duties as a hospital employee:

An interesting case with which to begin one's exploration is Warthen v. Toms River Community Hospital, Superior Court of New Jersey (1985) [499 A. 2d 299 (1985)].

Privacy:

By using Find Law: “Laws: Cases and Codes: Supreme Court Opinions,” see the following (referred to by Bernard Schwartz, A History of the Supreme Court (Oxford: 1993), at pages 358-9); it is often most efficient to use the "Citation Search" when you know the volume number of the U.S. Reports (specified in front of "U.S.") and a page number (specified after the "U.S."):

• Roe v. Wade, 410 U.S. 113 (1973), at 210-1 (Brennan’s list of what is included in the right of personal autonomy, as quoted in the concurring opinion of Douglas; Schwartz writes, "To be sure, none of the liberties in the Brennan-Douglas list is mentioned in the Constitution. Yet all involve freedoms that most Americans rightly believe are protected against governmental intrusion.");
  
• Olmstead v. United States, 277 U.S. 438 (1928), at 478 (Brandeis’ dissent; Schwartz writes, "The right of personal autonomy comes down to what was stated in the classic language by Justice Brandeis");
  
• Griswold v. Connecticut, 381 U.S. 496 (1965), at 496 (Goldberg’s concurrence, insisting on a role for the Ninth Amendment)
  
• Poe v. Ullmann, 367 U.S. 497 (1961), at 540 (Harlan’s dissent; Schwartz writes, ". . . Justice Harlan indicated why the right to be let alone was guaranteed, even though it was not mentioned in the constitutional text.")
• In addition, see The famous article by Brandeis and Warren on Privacy.

Also using Find Law: “U.S. Constitution: With Annotations . . .,” you can read relevant parts of the Constitution and also useful annotations.

Freedom of Speech:

Yale Law School's Mock Court opinion in ACLU v. Reno II: Free Speech versus the Child On-Line Protection Act, a federal attempt to regulate materials on the internet which might be harmful to minors.

Judge Reed's opinion granting a preliminary injunction in ACLU v. Reno II, the COPA case, from EPIC's site.


Yale Law School's Information Society Project, including links to resources.

The Foundation for Individual Rights in Education plans to post a database of campus speech codes online in May of 2003. The foundation plans to coordinate legal challenges to campus speech codes in each of the 12 federal appellate circuits.

Evidence: especially the difficulties in eyewitness testimony:

“ State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.
“ All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.
“ At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. …
“ Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures.
“ Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions.
“ Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states.
“ 'It's become clear that eyewitnesses are fallible,' said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques. …
“ More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project.
“ The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor. …
“ 'The legislative reform movement as a result of these DNA exonerations is probably the single greatest criminal justice reform effort in the last 40 years,' said Peter J. Neufeld, co-director of the Innocence Project.
“ But some law enforcement officials oppose some of the changes, saying they create legal minefields for the police and prosecutors. Any deviation from the new standards, no matter how minor, could be taken up by defense lawyers in an appeal, the critics say. …
“ Studies of wrongful convictions suggest that there are thousands more innocent people in jails and prisons. The Innocence Project, the nation's most prominent organization devoted to proving wrongful convictions, is pursuing 250 cases and at any given time is reviewing 6,000 to 10,000 additional cases for legal action. Approximately 1 percent of those cases will be accepted, and half of those accepted cases are closed because evidence has been lost or destroyed. …
“ In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found.
“ DNA evidence was used to exonerate 144 of those inmates.
“ In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004. …
“ 'Of the 340 exonerations I looked at' in the 2005 study, Professor Gross said, '96 percent are for rape and murder.' He added: 'Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes.' …
“ The proposed laws on witness identification are intended to reduce cases like Mr. Dail's by requiring things like sequential photo lineups of suspects, in which police officers show witnesses photographs of one suspect at a time. Studies have shown that witnesses tend to compare photos when they are shown them simultaneously, a tendency that can lead to errors. … [See below]
“ Eight states — Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming — do not have laws that give inmates access to DNA evidence. … ”
—From 10-1-07 New York Times, "Exoneration: Using DNA Brings Change in Legal System," By SOLOMON MOORE.

Compare this to an excerpt from Boardman's "The Relativity of Perceptual Knowledge," 94 Synthese 145-169 (1993), page 164:


Again, changing the example, suppose that having been mugged in a park, a person now surveys suspects in a line-up. If he identifies “number three” as the culprit, he is claiming something like this: to see that it is “number three” as opposed to the others in the line-up. While he is not merely claiming a similarity between the culprit and “number three” (“number three” might be the member of the line-up most resembling the culprit without the victim's supposing that he is the culprit), nevertheless, his claim is—if the present account be correct—more limited than an absolute claim of identification. If a new worry is posed—that the culprit might actually be someone absent from the line-up who looks very much like “number three”—then I don't really see how the earlier line-up identification could reasonably be expected to rule that out. The witness must reply that this is possible: subsequent investigation must center on how likely this possibility is. If a thorough investigation finds no evidence of there having been someone else in the vicinity at the time who looked much like “number three,” then the witness may properly claim to have recognized “number three” as the culprit. But on the other hand, if the evidence suggests that someone who looks like “number three” was in the vicinity at the time in question, then the witness must retract his earlier claim. Subsequently, the witness may have an opportunity to look at this new suspect: on this occasion, he may be able to see that the new suspect is not the culprit—perhaps the new suspect has a prominent mole which the witness would certainly have noticed had the culprit been so endowed, or perhaps the witness simply sees that this new suspect is not the culprit. Such supplementary information would allow the witness to reinstate his original claim to have recognized “number three” as the culprit.

---


“ Late last month, the number of inmates formally cleared on the strength of DNA evidence reached 200, a moment that led to the first in-depth analysis of those cases by the project.
“ The first 200 who were cleared, shown below, served an average of 12 years in prison. They ranged in age from 14 to 56 at the time of their convictions. Eighty-eight percent were convicted of sexual assault; 28 percent of murder. Fourteen were on death row. …
“ In the 18 years since the Vasquez case [he was the first person to be exonerated by DNA tests], DNA testing has revolutionized forensic science and upended long-held notions about the reliability of evidence used routinely to convict people of crimes, including confessions.
“ In the 200 cases, often more than one factor led to the initial convictions, the analysis showed. Three-quarters were marked by inaccurate eyewitness identification, and in two-thirds, there were mistakes or other problems with the forensic science. Fifteen percent featured testimony by informants at odds with the later evidence. There were confessions or admissions in about 25 percent of the cases. In about 4 percent, the people had pleaded guilty.
“ As these cases have captured the public's attention, various states and law enforcement agencies have made reforms, including improving the standards for eyewitness identifications, recording interrogations and upgrading their forensic labs and staffs. Several states have appointed commissions to re-examine cases in which inmates were exonerated by DNA. Some states are reconsidering their death penalty statutes.
“ DNA testing has also helped law enforcement officers exclude suspects from further scrutiny. And, in turn, it has helped the police and prosecutors convict an untold number of people of crimes, stamping those outcomes with an equal sense of scientific finality. ”
—From 5-20-07 New York Times, "The DNA 200," By CHRIS CONWAY.


---



“ . . .
“ Surveys conducted by the National Youth Gang Center, which is financed by the federal Department of Justice, have found that 88 percent of urban prosecutors describe witness intimidation as a serious problem.
“ In both Baltimore and Boston, where 'stop snitching' campaigns by rap artists and gang leaders have urged city residents not to cooperate with the authorities, prosecutors estimate that witnesses face some sort of intimidation in 80 percent of all homicide cases.
“ In Essex County, prosecutors report that witnesses in two-thirds of their homicides receive overt threats not to testify, with defendants and their supporters sometimes canvassing witnesses' neighborhoods wearing T-shirts printed with the witnesses' photographs or distributing copies of their statements to the police.
“ Dozens of New Jersey murder cases have been undone over the past five years after witnesses were killed, disappeared before trial or changed their stories.
“ In 2004, the Newark police determined that four people found dead in a vacant lot had been killed to silence a witness to a murder; a witness to that quadruple homicide was later shot to death as well. . . .
“ Gregory DeMattia, chief of the Essex County prosecutor's homicide division, said his investigators saw fallout from witness intimidation every day. When they arrive at a crime scene, he said, bystanders scatter so neighbors will not think they are cooperating with the police.
“ Those who do help often do so surreptitiously — leaving detectives a note in a trash can or asking to be taken away in handcuffs 'so that neighbors will think they're in trouble with the police and not cooperating,' Mr. DeMattia said. . . .
“ But across Maryland in Prince George's County, where there is also a serious gang problem, State's Attorney Glenn F. Ivey has taken the opposite tack. He insists on pursuing single-witness cases even though he was criticized publicly for losing 4 of them in 13 months.
“ 'If you have a single witness and you believe their story, I believe you've got to go forward, even if it's a case you might lose,' said Mr. Ivey, whose office's conviction rate on homicides is more than 80 percent. 'I'm not going to give the gang members, the murderers and the rapists an easy out. And if they know that all they have to do is get your case down to one witness, I think it would encourage them to use even more intimidation.' Here in Newark, even in cases with multiple witnesses — and occasionally even when one of those witnesses is a police officer — the prosecutor has sometimes been unwilling to authorize arrests. . . . ”
—From 3-1-07 New York Times, "Scared Silent: With Witnesses at Risk, Murder Suspects Go Free,"By DAVID KOCIENIEWSKI.


“ The endlessly recursive conflict in the Middle East provides any number of instructive morals about human nature, but it also offers a psychological window into the world of partisan behavior. Israel's 1982 war in Lebanon sparked some of the earliest experiments into why people reach dramatically different conclusions about the same events. . . .
“ Partisans, it turns out, don't just arrive at different conclusions; they see entirely different worlds. In one especially telling experiment, researchers showed 144 observers six television news segments about Israel's 1982 war with Lebanon.
“ Pro-Arab viewers heard 42 references that painted Israel in a positive light and 26 references that painted Israel unfavorably.
“ Pro-Israeli viewers, who watched the very same clips, spotted 16 references that painted Israel positively and 57 references that painted Israel negatively.
“ Both groups were certain they were right and that the other side didn't know what it was talking about.
“ The tendency to see bias in the news — now the raison d'etre of much of the blogosphere — is such a reliable indicator of partisan thinking that researchers coined a term, 'hostile media effect,' to describe the sincere belief among partisans that news reports are painting them in the worst possible light.
“ Were pro-Israeli and pro-Arab viewers who were especially knowledgeable about the conflict immune from such distortions? Amazingly, it turned out to be exactly the opposite, Stanford psychologist Lee D. Ross said. The best-informed partisans were the most likely to see bias against their side.
“ Ross thinks this is because partisans often feel the news lacks context. Instead of just showing a missile killing civilians, in other words, partisans on both sides want the news to explain the history of events that prompted — and could have justified — the missile. The more knowledgeable people are, the more context they find missing. . . . ”
—From 7-24-06 Washington Post,Two Views of the Same News Find Opposite Biases," By Shankar Vedantam, Washington Post Staff Writer.


“ Though he once opposed the idea, Gov. Rod R. Blagojevich said he would sign a bill on Thursday [7-17-03] that would make Illinois the first state to pass legislation requiring police to record their interrogations of homicide suspects. . . .
“ The law will require detectives to audio- or videotape homicide suspects during interrogations that occur while the suspects are in custody.
“ The police in Minnesota and Alaska and some individual law enforcement agencies around the country already tape interviews with suspects, but Illinois is the first state to pass legislation requiring taping, said Thomas P. Sullivan, a Chicago lawyer who helped lead a commission appointed by [former Governor of Illinois] Mr. Ryan to overhaul the state's death penalty system. Minnesota and Alaska were required to do so by their state supreme courts. . . .
“ Supporters of taped interrogations say the process protects both police and defendants by creating a simple, clear record for juries and judges of who said what during an investigation. The tapes, these supporters say, would resolve what has become a routine debate during criminal trials between the police, who testify that suspects confessed to crimes, and defendants, who testify that they did not confess, or at least that they did not do so voluntarily. ”
—From 7-17-03 New York Times, "Illinois Will Require Taping of Homicide Interrogations," By MONICA DAVEY.


“ A steady stream of exonerations is shedding new light on just how fallible the criminal justice system is. From eyewitness identifications to false confessions, criminal convictions are being re-examined with an ever more sophisticated eye. There is more talk, too, about what we can do to protect the innocent. . . .
“ There is something a little scary about this, though, especially for those most interested in protecting and defending the rights of the accused. The obsessive focus on innocence runs the risk of eclipsing what should be the central issue of the criminal justice system -- protecting the rights of everyone. The more that we highlight the rare cases in which innocence can actually be proved, the less we focus on the right of all to the presumption of innocence. So while criminal-defense attorneys may be gleefully reaping the rewards of DNA exonerations now, the long-term impact may be more pernicious than they anticipate. . . .
“ But while DNA evidence has given us a definitive look at a certain segment of criminal cases in which biological evidence is deposited, recovered and preserved, these clear cases are few and far between. The reality is that most criminal cases are muddled, confusing affairs, rife with conflicting testimony, jumbled loyalties, complex motivations and equivocal evidence. In the vast majority of cases, proof of innocence simply can't be established. Because of this reality, the criminal justice system has developed an arcane but workable system for approximating a truth that is, in all but the most exceptional cases, unknowable. It is a system that relies on fundamental rights afforded anyone accused of a crime: proof beyond a reasonable doubt, conviction by 12 unanimous jurors and, perhaps most important, the presumption of innocence. . . .
“ The best way to ensure the integrity of the system is to insist ever more stridently on protecting these notions [of the burden of proof's lying on the prosecution and the presumption of innocence's not requiring proof of innocence] and ensuring the rights of all. There is, in this, a good lesson for all those riding the wave of innocence: Beware the hubris of certainty. ”
—From 6-15-03 New York Times, "ESSAY: The Dark Side of Innocence," By DAVID FEIGE [a public defender in the Bronx].

“ DNA testing, when properly conducted and interpreted, can provide categorical proof of guilt or innocence. Its role in the exoneration of more than 120 people has captured the public imagination. But this uniquely authoritative tool can also play a role in wrongful convictions.
“ 'It is powerful evidence both to convict and to exonerate,' said Peter Neufeld, a founder of the Innocence Project at Cardozo Law School, a program that works to free innocent people in prison. 'It's kind of a truth machine. But any machine when it gets in the hands of human beings can be manipulated or abused.' . . .
“ The problem with DNA testing is not that it results in falsely positive results. The problem is the human factor.
“ 'So many of the people who give DNA testimony,' said Stephen B. Bright, the director of the Southern Center for Human Rights, 'went to two weeks of training by the F.B.I. in Quantico, say, and they are miraculously transformed from beat policemen into forensic scientists.'
“ The analyst who testified in Mr. Sutton's case [Sutton, convicted by a Houston jury on the basis of supposed DNA evidence in 1999 was sentenced to 25 years; he has recently been freed after retesting of the DNA excluded him as a suspect] said she had attended a two-week training course sponsored by the company that sold DNA kits to her laboratory. . . .
“ But DNA tests performed for the prosecution are seldom reanalyzed. 'Defense lawyers, like everyone else, have become so convinced of its infallibility that they don't bother to challenge it,' said William C. Thompson, a professor of criminology at the University of California at Irvine.
“ Judges will not authorize payments for retesting, said Harlan Levy, a New York lawyer who has worked with DNA evidence as a prosecutor and a defense expert and is the author of 'And the Blood Cried Out,' an analysis of such evidence in the justice system. Testing costs $2,000 to $4,000. . . .
“ The exonerating power of DNA evidence reveals the unreliability of other forms of incriminating evidence.
“ 'In something like one-quarter of DNA exonerations, there was a confession,' Professor Dow [director of the Texas Innocence Network] said. 'In something like three-quarters, there was an eyewitness.'
“ As a consequence, legal experts say, such testimony in cases without DNA evidence should not be given much weight. In fact, DNA may have raised the bar on what qualifies as acceptable proof of innocence. Defendants and inmates in cases without biological evidence can have a very difficult time trying to establish their innocence.
“ Mr. Neufeld estimated that biological evidence that can be subjected to DNA testing to identify the guilty is available in fewer than 10 percent of violent crimes. 'DNA exonerations create the illusion that we can really have a foolproof system of justice,' Professor Dow said. 'That's quite false.' ”
—From 3-16-03 New York Times, "You Think DNA Evidence Is Foolproof? Try Again," By ADAM LIPTAK.

“Prosecutors in St. Paul vacated a 1985 rape conviction yesterday [11-13-02] after a review of old cases led to DNA testing that showed they had the wrong man. It is believed to be the first time that a prosecution-initiated review, as opposed to a defendant's appeals, has resulted in exoneration. [!]
“ 'This sends a strong message that our No. 1 concern is justice," said Susan Gaertner, the Ramsey County attorney, whose office spent 18 months studying 116 pre-1995 convictions to see if new technology might change the outcome. 'I'm not proud that we goofed, but I'm proud that we welcomed the light to be shone on our prior cases, that we were willing to use DNA evidence to possibly disturb convictions we'd obtained.' . . .
“ Ms. Gaertner, who was elected in 1994 and decided to conduct the review [of old cases] after a national meeting of prosecutors last year with former Attorney General Janet Reno, said her office did not ignore cases in which there had been confessions. The vast majority of the 116 under review, she said, either had strong corroborating evidence or did not turn on questions of identity that could be resolved by DNA. Pointing out that Mr. Sutherlin had not requested DNA testing and would not have been exonerated without the prosecutorial effort, Ms. Gaertner invited defense lawyers to review the 116 files.
“ 'The major reason we undertook this review is because of the attack on prosecutors and the criminal justice system lately — I'm afraid that it's left an impression with the public that all we care about is convictions, and not justice,' she said. 'If by standing up and saying we goofed that enhances their confidence that in other cases we haven't goofed, that accomplishes something.' ” —From 11-14-02 New York Times, "Prosecutors Use DNA Test to Clear Man in '85 Rape," By JODI WILGOREN.


“ CHICAGO, April 23 (AP) — A man who spent 25 years in prison for rape was exonerated Monday as a judge threw out his convictions because DNA evidence showed he could not have committed the attack. An advocacy group said it was the 200th such case.
“ The man, Jerry Miller, smiled and the courtroom erupted into cheers after Judge Diane G. Cannon of Cook County Circuit Court read the ruling that cleared him of all charges. …
“ The Innocence Project, a group based in New York, persuaded prosecutors last year to conduct DNA tests on a semen sample taken from the rape victim's clothes. Those results excluded Mr. Miller as the attacker.
“ The case is the 200th in the United States in which a person was convicted, then exonerated based on DNA evidence, the group says. The first exonerations based on DNA testing were in 1989, and in all, the 200 defendants served about 2,475 years in prison for crimes they did not commit, according to the group's Web site. …
“ The attendants [of a parking garage at the scene] helped the authorities make a sketch and later picked Mr. Miller out of a lineup. … ”
—From 4-24-07 New York Times, "Man Is Cleared of Rape Charges After Serving 25 Years," By THE ASSOCIATED PRESS.

Erica Goode writes in 3-23-99 New York Times that a study in the March issue of The Journal of Experimental Psychology "found that although adults usually can recall the gist of a conversation they have had with a child, they have difficulty remembering the exact wording or the structure of the conversation. They are also likely to remember incorrectly whether information was offered spontaneously by the child or elicited through questions, and to confuse specific statements they made themselves with statements made by the child." "The results, the researchers conclude, 'raise concern about hearsay testimony that is provided by adults about prior conversations with young children.'"

Discussion from PBS's FRONTLINE, "What Jennifer Saw," on the perils of eyewitness testimony.

Law and Economics:

Look for "Law and Economics" at FIND LAW LEGAL SUBJECTS

use findlaw.lawcrawler to search for "law AND economics"

ENCYCLOPEDIA OF LAW & ECONOMICS by Edward Elgar and the University of Ghent

See my "After MacPherson"

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Here are some legal links:

• A guide for links to court opinions on the Web, along with pointers to legal opinions and legal opinion databases; from legal.online editor, Bob Ambrogi.

• Judicial Branch Server
  

	Find Law: “Laws: Cases and Codes: Supreme Court Opinions;” very efficient means of finding and reading U.S. Supreme Court decisions, both historical and current. It is often most efficient to use the "Citation Search" when you know the volume number of the U.S. Reports (specified in front of "U.S.") and a page number (specified after the "U.S.")
	U. S. Supreme Court Decisions
	Historic U. S. Supreme Court Cases This second, 1997, edition of Cornell Law School's Legal Information Institute's Collection of Historic Decisions of the United States Supreme Court includes many more decisions (582), important rulings from the Court's most recent term, and tables allowing retrieval of decisions by topic, by name, and by opinion author.
	“Supreme Court Guide” provided by The New York Times
	Selected oral arguments of the U. S. Supreme Court (audio)

• U.S. Federal Courts Finder
• UK House of Lords Judicial Business; click on "Judgments" to see texts of recent judgments.
• Old Bailey Online Various trials at London's central criminal court from 1714 to 1759 are online; eventually, trials from 1674 to 1834 will be available. "Notable Trials" under "About the Proceedings" gives an overview of the judicial system at the time.
• High Court of Australia; provided by Australasian Legal Information Institute

• SEARCH Federal and many State Courts via Find Law
• Find Law legal dictionary
• SEARCH high courts of other countries via FarisLaw: click on country in top banner to get that country's high court. (Provided by Peter Faris, Q. C. )

• "Useful Links" to Constitutional Law sites provided by Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School; see also his Home Page.
  See also Balkinization, a blog concerned with constitutional issues, and other timely legal issues, hosted by Jack M. Balkin.

• The Charters of Freedom from the National Archives and Records Administration

• Cornell Law School's Legal Information Institute: Eye on the Courts. (While there, you can also click on LII icon for much more; this is an indispensable site.)
• State Court Locator (from Villanova Center for Information Law and Policy)

• Shark Talk: Everybody's Law Dictionary
• Law Journal Extra: The Web Site for Lawyers; note the links, "resources," "courthouse," and "legal headlines."
• Large and useful collection of legal links from FindLaw.com

• Law Crawler Home Page for U.S.A.: Efficient Legal Search Engine
• A collection of links to legal search engines, directories, etc.
• Negligence Index from Tasmania
• Recent Wisconsin Supreme Court Decisions
• Counsel Connect Web
• Warren and Brandeis' important 1890 essay, "The Right to Privacy"

LINK to Frontline's Web Site (PBS) dealing with its investigation into the Little Rascals Day Care case in Edenton, N. C.

An examination of a frightening and disheartening legal case the disposition of which challenges the Criminal Justice System common to most states.

On-line access to Journals:

• Directions for getting journal articles on-line
  Many philosophy journals at Lawrence are available on-line, and some are now available in no other form. Here are instructions for getting articles via "JSTORS" using a computer at Lawrence or off-campus. When you find an article, you may read it, you may print it out, or you may download to your hard-drive an Acrobat PDF file of the article to read later on your computer. The PDF files are often quite large (e.g., 4.5 MB).

• EBESCO  Students and faculty working from the Lawrence campus—and since May of 2002, even off-campus—may use the Lawrence library's EBESCO resource for reading some journal articles.
  For example, to read, on-line from the Lawrence campus, George Priest, "The Modern Expansion of Tort Liability: Its Sources, Its Effects, And Its Reform," 5 Journal of Economic Perspectives 31 (1991)—an excellent historical account of the changes in tort law since 1960 (and especially since 1970):
  point LU browser to ELECTRONIC LIBRARY RESOURCES: http://www.lawrence.edu/library/research/elecres.shtml

  then to BADGER LINK: http://www.dpi.state.wi.us/badgerlink/

  then choose Magazines, Journals and Other Information: http://www.epnet.com/ehost/badger/badger.htm

  now Connect To Ebesco Host: http://search.epnet.com/login.asp?site=ehost

  now CHOOSE A SERVICE: (LUWEB) (then wait for service)

  check "academic search elite" and click "enter"

  search for "Priest and George"

  on the seventh page: choose 65. The modern expansion of tort liability: Its sources, its effects, and its reform.; By: Priest, George L., Journal of Economic Perspectives, Summer 91, Vol. 5 Issue 3, p31, 20p, 2 graphs Full Text.

  Appleton residents with a valid Appleton Public Library card can gain on-line access to EBESCO via http://www.apl.org/
  

• Students working from the Lawrence campus, or off-campus, may also use the Lawrence library's Lexis-Nexis Academic Universe link to read law cases and law review journal articles. For example, an interesting 1969 California Supreme Court case on abortion is People v. Belous, 71 Cal. 2d 954 (1969), California State Supreme Court. See an example of how to use the Lexis-Nexis site.

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From campus or off-campus: Lexis-Nexis Universe

Lexis-Nexis Universe   The Lexis-Nexis link is available from the Lawrence campus—and off-campus for student, faculty, and staff; it is very useful for finding historical cases in state law, difficult to find federal cases, and articles from law journals. Note that Lawrence's site license allows one to read, and to make a printed copy of, whatever one finds, but to copy electronically only "insubstantial portions." Because there is often no other way to look at these cases without driving to Madison, this is very convenient despite its limitations. See the following example of how to use the Lexis-Nexis site.

  Using Lexis-Nexis: Suppose you wish to read an interesting 1969 California Supreme Court case on abortion, People v. Belous, 71 Cal. 2d 954 (1969), California State Supreme Court:

First, go to the Lawrence library electronic library site: http://www.lawrence.edu/library/research/elecres.shtml Then go to the Lawrence Lexis-Nexis site: http://web.lexis-nexis.com/universe/form/academic/index.html Now choose: "State Legal Research" to reach http://web.lexis-nexis.com/universe/form/academic/univ_states.html Now choose : "Case Law: State" to get http://web.lexis-nexis.com/universe/form/academic/univ_statecase.html Now choose: "California" to get the California State Case Search Page. Now select "full text" and as Search Terms type "Belous" and as date, select "From" button, and then type "1969" for the first box, and "1969" for the "To" box. You will then be able to choose: "PEOPLE v. BELOUS, Crim. 12739, Supreme Court of California, 71 Cal. 2d 954; 458 P.2d 194; 1969 Cal. LEXIS 299; 80 Cal. Rptr. 354, September 5, 1969" (Note that in the text of the report, the numbers in square brackets preceded by a single astrick denote pagination of the California Reporter, 2nd Supp, vol. 71.)   You can also use Lawrence's Lexis-Nexis connection to read and print articles from very many law journals. Suppose that you wish to read Sanford H. Kadish, "Letting Patients Die: Legal and Moral Reflections," 80 California Law Review 857 (1992): First go to the Lawrence library electronic library site: http://www.lawrence.edu/library/research/elecres.shtml Then click on the Lexis-Nexis Universe site: http://web.lexis-nexis.com/universe/form/academic/index.html Then click on "Legal Research;" then click on "Law Reviews;" then choose "More Options." You will get a page which looks like this picture: Enter the last name of the author, and set the "in"-box to "Author." Be sure to set the "Date" to "all." Type the name of the journal or choose from a list of journals which can be found by clicking on "Source List." (I would not try to fill in all the keyword boxes: a small bit of information tends to be more efficient.)

Miscellaneous:

• Boardman's home page
• Syllabus for Phil 20, Boardman's course in Philosophy of Law
• Department of Philosophy home page
• Lawrence's Electronic Library Resources
• Lawrence University home page
• Interdisciplinary area in Bioethics

• Appleton Public Library's collection of links
• Economic Statistics Briefing Room
• LINK to Ranking of Law Schools by U. S. News & World Report.
• Warren and Brandeis' important 1890 essay, "The Right to Privacy"

Link: "Bill of Rights Pared Down To a Manageable Six," in the satirical The Onion

Physician-Patient Privilege “ One of the most crucial bonds between patient and physician is the absolute promise of confidentiality. Most people are simply not comfortable discussing sensitive topics unless this promise is strictly upheld. “ Because it is impossible to predict what might shame one person but not another, doctors pledge confidentiality to all, with the proviso that they may discuss cases with medical colleagues to provide better care and, in much rarer instances, when a child is being abused, for example. . . . “ Yet, recently, serious threats have arisen to this essential social contract between physician and patient. In February, for instance, attorneys for the Justice Department subpoenaed the medical records of women who had had abortions at Planned Parenthood clinics in California, Kansas, Missouri, Pennsylvania, New York City and Washington, saying that federal law does not recognize a physician-patient privilege. . . . “ It may be tempting to view this as merely another skirmish in the continuing war between those who favor abortion rights and those who oppose them. But the assault on abortion clinics is not the sole example. Last month, Florida state prosecutors seized Rush Limbaugh's medical records to investigate whether narcotics had been obtained illegally. . . . “ A number of studies demonstrate that when patients fear that their confidentiality may be threatened, they avoid full disclosure or stop visiting doctors altogether. . . . “ Wherever one stands on the political spectrum, it seems desirable to codify into federal law a protection that we know benefits everyone's health—and that physicians have honored for thousands of years [through their Hippocratic Oath]. Simply put, what you say to your doctor ought to stay in his office without the threat of being aired in a courtroom or public forum. ” —From 3-16-04 New York Times, "When Big Brother Invades the Examining Room," By Howard Markel, M.D., Op-Ed contributor; emphasis added.

Link to PBS Frontline on Iraq Insurgency

Rich and Poor in America . . . “ The top fifth of earners in Manhattan now make 52 times what the lowest fifth make - $365,826 compared with $7,047 - which is roughly comparable to the income disparity in Namibia, according to the Times analysis of 2000 census data. Put another way, for every dollar made by households in the top fifth of Manhattan earners, households in the bottom fifth made about 2 cents. “ That represents a substantial widening of the income gap from previous years. In 1980, the top fifth of earners made 21 times what the bottom fifth made in Manhattan, which ranked 17th among the nation's counties in income disparity. . . . “ A separate analysis, being released this weekend by the Fiscal Policy Institute in Albany, warns that the middle class is being depleted while the rich are getting richer and the poor are growing in number and barely getting by - more so in New York State and particularly upstate. “ The loss of good-paying jobs, especially in manufacturing, "has meant that the 'hollowing out' of the middle of the income distribution continued at a rapid pace," the institute, a union-backed research group, concluded. It said the number of families earning between $35,000 and $150,000 declined by 50,000 from 2000 to 2003 while the number that earned above $150,000 and below $35,000 increased. ” —From 9-4-05 New York Times, "In Manhattan, Poor Make 2¢ for Each Dollar to the Rich," By SAM ROBERTS. See also Los Angeles Times special business series: "The Poor Have More Things Today -- Including Wild Income Swings";   "If America Is Richer, Why Are Its Families So Much Less Secure?";   "As Risk Spreads, One Group Stays Immune";   "How Just a Handful of Setbacks Sent the Ryans Tumbling Out of Prosperity"

Dover School Board: Evolution vs. Intelligent Design “ A federal judge ruled today that it is unconstitutional for a Pennsylvania school district to present intelligent design as an alternative to evolution in high school biology courses because intelligent design is a religious viewpoint that advances 'a particular version of Christianity.' “ In the nation's first case to test the legal merits of intelligent design, Judge John E. Jones III issued a broad, stinging rebuke to its advocates and a boost to scientists who have fought to bar intelligent design from the science curriculum. . . . “ Judge Jones concluded that intelligent design is not science, and that in order to claim that it is, its proponents admitted that they must change the very definition of science to include supernatural explanations. He said that teaching intelligent design as science in public school violates the First Amendment of the Constitution, which prohibits public officials from using their positions to impose or establish a particular religion. . . . “ The decision by the judge, a longtime Republican nominated for the federal bench by President Bush during his first term, is legally binding only for school districts in the middle district of Pennsylvania. . . . ” —From 12-20-05 New York Times, "Judge Bars 'Intelligent Design' From Pa. Classes," By LAURIE GOODSTEIN. Download and Read in PDF form the facinating and thorough legal decision in the Pennsylvania evolution trial, Kitzmiller v. Dover Area School District; also see New York Times: The Evolution Debate Link to PBS's NOVA's Judgement Day: Intelligent Design on Trial The site gives background and dramatization of the Pennsylvania trial. Link to the WGBH site on evolution

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from Neil MacCormick, “A Moralistic Case for A-moralistic Law? Two Lectures on Law and the Enforcement of Morals” 20 Valparaiso University Law Review 1 (1985),   “Let it be supposed, as is sufficiently established, that law and morality do not have to be identical. What sort of a case could then be made for insisting that they ought to be kept distinct? . . . The analogy [with religious disestablishment] can perhaps be pressed by allowing me to refer to Mark DeWolf Howe's splendid historical account of the Disestablishment Clause in the First Amendment to the United States Constitution. As the title of his book The Garden and the Wilderness reminds us, there were from the beginning two visions of the real point of disestablishment.[*] One was that of the Puritan divine Roger Williams, who wanted a secure wall built around the garden of religion, safeguarding it against the political wilderness without. The other was the view of Thomas Jefferson, who wanted a firm wall (as it were) erected around each of the plots of religion to prevent priestcraft from breaking out and corrupting statecraft. Williams' version was of a depoliticized church, protected from the intrusions of Federal politicians; Jefferson's was of a secularized Government, secured against the ambitions of prelates and priests. We might perhaps do well to think of moral disestablishment as a two sided program—aimed on the one hand at protecting morality from ill judged intrusions by government through the instrumentality of law, and on the other hand at protecting the proper business of the law from excessive (or any) interventions by meddlesome moralists.” (pp. 11-2)   “The difficult point about moral, as about political or religious ideas, however, is that they belong to the sphere of the practical. They are not only matters of what people think true in a speculative way. They are how people think lives should be led. So the freedom of debate in these matters, the free moral market, requires freedom to do as well as to say, freedom to test out ways of living by living them. This calls for majoritarian and legislative abstentionism, not for the strategies of moral majoritarianism. To say this is to allude to the good of toleration, let it be said active toleration rather than merely passive indifference. Toleration, unlike indifference, does not shirk criticism of rival views; merely, it insists on the difference between a critique, however trenchant, of a rival view and a suppression of that view. . . .   “What is good about tolerance as a social virtue is that it acknowledges and promotes a form of society in which there are honest, serious, and open differences of opinion about the good life and how to live it but in which the holders of rival opinions can fully respect each other as sharing a common citizenship and a common form of social life—that alone in which debate is possible. It allows also that different opinions issue in different lifestyles and ways of life but that the right to dislike or to be disgusted with some of these does not carry over into a right to repress them simply on account of their being morally unsound or morally mistaken.” (p. 14)   “As a matter of history, the insistence that legal systems primarily exist as systems of rules has been an element in the attempt to justify coercion in human societies: or rather, to reduce the level and range of official coercion to a point where it is capable of being justified in principle, and also in practice. This is exhibited time and again in the attempts societies have made to reduce their legal systems to systems of defined rules. The earliest case I have come across, though doubtless there are others yet earlier, is the case of early Roman law and the codification in the Twelve Tables.[*] A form of law administered by and in its details known and understood by a priestly and patrician class or caste in the city became a focus of resentment for the plebians, the ordinary people of the city. In revolt against this mode of government the plebs seceded, decamping to a nearby mountain and threatening to found a new rival city there.   “The point of this—or the point ascribed to it in Roman legal legend—was that the plebs regarded itself as having been excluded from fair terms of citizenship. To be subjected to undisclosed standards of right and wrong implemented by arcane and undisclosed procedures, any flaw in which would be fatal to an action in the law, is to be treated intolerably. Without some intimation of what the law is, one cannot reasonably be called upon to obey it or to be penalized for one's infractions. Unless rules are made and published, people do not know where they stand, and they should not stand for that. And it was in response to just such pressures and demands that the early Roman codification of the civil law into the Twelve Tables was accomplished.” [MacCormick goes on to discuss Bentham's application of this principle to denounce attempts of jurists to resort to natural law. E.g., John Erskine in his Institute, writes, "The transgression of the divine law, where it consists in any positive act, hurtful to the peace of the society, though there should be no statute forbidding it, is accounted a crime by our practice, and may be punished, even by death, if the nature of the criminal act deserve it."[*]] (pp. 23-4) “Where laws rule and the Rule of Law exists even in a minimal and purely formal sense, one of the most basic conditions for fair dealing among humans exists. Others may be lacking, and if they are so grossly lacking that they overwhelm the balance of values, the system of government should be instantly subverted and overthrown. But it is false to suppose that whatever is on the whole evil, even grossly evil, can have no good intermingled in it. My submission is that where law, law as analyzed in terms of positivist theory, exists, something of some value is present in the social situation.” (pp. 26-7)

[*] [MacCormick's footnote:] M. Howe,The Garden and the Wilderness 6-15 (1965). [*] [MacCormick's footnote:] See Dig. Just. I.2.2. [Digest of Justinian] [*] [MacCormick's footnote:] J. Erskine, An Institute of the Laws of Scotland IV.4.3 (1st ed. Edinburgh 1773).

Robert Bolt, A Man For All Seasons, Vintage (1960, 1962), pp. 37-38:

Roper Arrest him. Sir Thomas More For what? Alice He's dangerous . . . Margaret Father, that man's bad. More There is no law against that. Roper There is! God's law! More Then God can arrest him! . . . Alice While you talk, he's gone! More And so he should, if he was the Devil himself, until he broke the law! Roper So now you'd give the Devil benefit of law! More Yes. What would you do? Cut a great road through the law to get after the Devil? Roper I'd cut down every law in England to do that! More Oh? And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil himself benefit of law, for my own safety's sake. . . . And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law!

(The historical Sir Thomas More, unlike Bolt's character, was not altogether admirable; though remembered for his courage, he is particularly noted for his fanatical persecution of heretics.)

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Note: there are two formats for this philosophy of law page.

The horizontal format has a horizontal index across the top of the page.
The vertical format has a vertical index down the left side.

Use that format best suited to your monitor: the inside frame containing the content is the same.

Comments: William.S.Boardman@lawrence.edu
William S. Boardman
Main Hall (Emeritus office)
Lawrence University
Appleton, Wisconsin 54912-0599
my home page