My Lecture Notes

On Exam Questions:

Potential ingredients for response to the questions to include only material covered in class and NOT any outside sources.

Legal, ethical and religious factors in the Catholic church crisis: Some factors such as the confidentiality between priest and penitent could be considered legal, ethical and religious.

Use of the word ‘morality‘ in Anthony Lewis’ book Gideon’s Trumpet: Reference the Supreme Court’s legal decision to argue how Anthony Lewis uses the word ‘morality‘, even though the Supreme Court’s decision didn’t use that word.

Similarities between the nominations of Robert Bork and Clarence Thomas.

• Cross-examination
• Conservatives
• Large-scale political discussions
• Stance on the issue of abortion

Differences:

• Qualifications
• Outcome
• Last minute addition new material (Anita Hill)

Quoting Ted Koppel’s use of the word ‘fundamentalist‘ in the answer – good addition or not?

Clarence Thomas on 60 minutes: Thomas wasn’t explicit about the role of Anita Hill and the accusations of sexual harassment, instead he saw it as an effort to derail the nomination of an anti-abortion judge. Anita Hill came to the committee secretly and was guaranteed anonymity, until a few days before his confirmation when her name became public.

NY Times on Supreme Court 2007-2008 term that starts on Oct 1.

So many polarizing cases on the docket for its new term that the deep ideological divisions that characterized the last term are all but certain to remain on display.

The conservative majority under Chief Justice John G. Roberts Jr. drove the court to the right in a series of high-profile rulings during the term that ended in June.

The case of requiring IDs in order to vote that ACLU opposes arguing that it disenfranchises poor and elderly who cannot afford to get IDs with the assumption that it would hurt Democratic candidates while Republicans argue that it’s to prevent voter fraud. Privacy and discrimination concerns regarding national ID cards, and whether states’ drivers’ licenses should be uniform.

Death penalty an accceptable form of punishment according to the Supreme Court. Case from Kentucky about the medicines used for lethal injections (cocktails) and the argument of causing pain and suffering.

NY Times editorial: The Roberts Court Returns

The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between. The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term.

How does the law turn the issue of abortion from a political issue to a legal one?

In his nomination hearings, John Roberts said that he had no agenda. Was he speaking truthfully, metaphorically, or to secure a top position in a prestigious court?

He has also said he wants more consensus on the court, and fewer 5-to-4 decisions.

It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together.

Anthony Lewis said that the role of the Supreme Court is to show the light.

Brown v. Board and the decision by the Supreme Court in its last term

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents.

Judicial activism depends on your perspective – judges are activists if they undo what you want, and not activists when they don’t. Were they activists when the overturned Betts v. Brady? The legal community for the most part didn’t think so, perhaps because the right to have an attorney was not as politically charged an issue as gay-marriage or abortion rights.

Roberts had said that he would simply be an umpire and call balls and strikes. NY Times writes:

If the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties. It could result in some terrible setbacks in these areas, however, if — as critics of the Roberts court have said — the court is calling balls and strikes but has moved the strike zone far to the right.

Conservatives might say the Supreme Court has moved the strike zone somewhat to the right but not yet quite far enough.

Supreme Court said that it wasn’t undoing Betts v Brady but instead correcting a mistake made in Betts v Brady.

Some might argue that Supreme Court is a political body as much as its a legal body because of the politics involved in the confirmation process. Conservatives see the virtue of moving the court to the right while liberals sees it as a defect. Another way to look at it is to say that after a detour the court is going back to its fundamental principles as Gideon argued.

The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

Same argument could be made for the other side. Supreme Court follows politics as some might say, but it takes longer because of lifetime appointments.

Great Ideas of Philosophy

Three main branches of philosophy:

• Ethics: The systematic study of moral ideas, values and principles. Also known as moral philosophy, it is concerned with the norms of human living, personal social and universal as well as the underlying logic of our judgments of right and wrong behavior.
• Meta Physics: the study of what there is.
• Epistemology: the study of how what there is.

Moral philosophy is not concerned with what is the case but with what ought to be the case. Ethics is the study of what is right and what is wrong and cuts to the core of our identity as free thinking creatures.

Three ares of Ethics:

• Meta- Ethics: Investigates the origins and natures of ethical concepts, and the language we use to talk about them. Are our ideas of right and wrong of eternal and universal values independent of human will, or are they the result of human conventions which in turn are based on constantly shifting historical and social circumstances? Should we try to discover universal values that all human beings can abide by? Or are all ethical systems inevitably bound to the particular values of each society? Should moral axioms be the same for all?
• Normative Ethics: Just as physics is the study of the fundamental principles governing the way the world is, normative ethics is the study of the fundamental principles of how one should live, how the world ought to be. The question is where these fundamental principles come from. Some think that what we ought to do is obey the will of God. Others insist that the moral life consists of doing one’s duty. Others think that we ought to make as many people happy as possible. Still others think that the moral life is the life governed by virtues like generosity, honesty and courage. Historically, moral philosophers have tried to develop normative ethical systems that include rules or standards by which one can judge particular acts and determine what to do in specific situations. Four major areas of Normative Ethics:

1. Virtue Theory – In general ancient ethics differs from modern ethics in that it is eudaimonistic. Aristotle considered happiness (eudaimonia in Greek) as the legitimate aim of any moral action. He identified three different types of ‘goods’ that we strive for – external possessions, the goods of the body and the goods of the soul. The most important being the goods of the soul for the soul is the seat of reason. He rejected the universal idea of the good arguing that what is good cannot be identical for all men, for each individual the good is different and in each activity and in each art. If the aim of medicine is health, the corresponding good is to the patient. If the aim of strategy is victory, the corresponding good is the efficient handling of the military forces. In each action and decision, good is the function which helps achieve the desired aim. A good person performs reasonable actions and the corresponding good is what we call virtue. Aristotle claimed that for an act to be moral, it must be the result of a conscious decision. Therefore, free will is a necessary condition for an act to be considered moral. If you cannot exert free will, your actions cannot be morally condemned. Aristotle also advanced the principle of the golden mean – according to him, for every human disposition or desire, there are those who are too extreme in some way too quick to anger or proceed to insults for example or too mild in the face of injustice. The virtuous character consists of finding a way of moderation that avoids the vice of both extremes. Thus, we should neither squander our money irresponsibly, nor should we be so tight fisted that we share nothing with others. Generosity is the golden mean between these extremes. After Aristotle’s death his ideas were taken up by thinkers such as Epicurus who rejected extreme hedonism and advocated instead for the pleasure guided by the sobriety of reason. He held that transparency is the litmus test for ethical behavior, commit no act that you’d want to hide from others.
2. Divine Command Theory – The principles that guide our behavior come from the will of God. During the middle ages, Divine Command Theory dominated and moral philosophy was essentially an offshoot of religion and theology. For medieval theorists, ethical principles derived from holy scriptures. The alternative to doing good was to sin and the goal of morality was the eternal salvation of the soul. Divine Command Theories can range from weak versions (God’s command only apply within the context of religious community) to strong ones in which human behavior is good if and only if it is willed by God. Plato addressed the question of whether God wills the good because it is good in the dialog Euthypro.
3. Utilitarian Theory (Consequentionalism) – In the 19th century, a series of British philosophers developed autonomous ethical theories that judged the morality of actions based on the consequences of those actions rather than on the intentions or the character of the doer. The best known version of Consequentionalism is Utilitarianism. Although the roots of Utilitarian thinking can be traced back to Plato, the British philosopher Jeremy Bentham is considered to the founder of this movement. Bentham who argued passionately for legal and social reforms, said that an act for moral if it produced the greatest happiness for the greatest number of people. For Bentham, happiness was equivalent to pleasure and he proposed what he called a Felicity Calculus to measure the happiness of individuals and communities and by extension the rightness or wrongness of an action. John Stuart Mill believed that everyone is a Utilitarian at heart even if they don’t know it. He defended his view from the criticism that Utilitarians are pleasure seekers asserting that in fact the Utilitarian standard is not the individual’s own greatest happiness but rather the greatest amount of happiness altogether. Utilitarianism requires that when necessary a person act against his or her own best interest in favor of the greatest happiness for the greatest number. Unlike Bentham, Mill distinguished between pleasures not only by their degrees of intensity but also by their quality. The pleasure of an animal does not have the same value as a human being’s pleasure. Individuals should take into account the quality of the pleasures they seek when making moral choices. Mill said, “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are a different opinion, it is because they only know their own side of the question. The other party to the comparison knows both sides.” There have been many forms of Utilitarianism put forth over the last two centuries. Mill himself moved beyond whats called Act Utilitarianism to Rule Utilitarianism, proposing that Utilitarianism principle should be used mainly in determining the value of rules such as ‘do not kill’, ‘do not lie’ or ‘do not steal’. We should judge acts by their compliance with the general rules of this kind. Mill also noted that every individual has sovereignty over his or her own body, psyche and spirit, therefore only behavior that effects other people can be subject to moral judgment. Implicit in this idea is the strong plan for broadening the scope of individual’s private life, an important development in modern ethics. A major criticism of Mills comes from English philosopher G.E. Moore who claimed that Utility is the property of good things but a synonym for good. According to Moore, neither pleasure nor happiness, nor utility can define morality of our actions.
4. Duty Theory – Deontology is the study of duty. A Deontologist believes that the rightness or wrongness of an action is independent from its consequences. In the 18th century an Prussian philosopher Immanuel Kant introduced a Deontological model which identified the fulfillment of duty as a basis for ethics. Kant put forth an ethical law to rationally guide our actions, he called this law the Categorical Imperative. For Kant, the autonomy of the will is the guiding principle of all moral laws and all duty stemming from them. It is the guarantee of a person’s dignity and equality under the law. The German philosopher Georg Hegel took issue with the Kantain model claiming that its ethics were too abstract and individualistic. He held that the sphere of the ethical is contained within the sphere of the social and both are within the the sphere of the State.

• Applied Ethics – Ethical theories applied to contentious controversial human issues such as the cases that the Supreme Court deals with on a regular basis, even though they are not moral philosophers, instead they are legal analysts. They are engaged in ethical decision making and involved with applied ethics in the areas of biology, medicine, business, sociology, sexuality and environment.

Civil Action: To what extent did the lawyers follow the professional code of ethics? General ethics vs lawyers’ ethics.

In Gideon’s case, he poor defendant ends up with the best lawyer in his appeal but in Civil Action, Facher a high profile lawyer defends the big corporations against Schlichtmann.

• Page 106: Skirting the bounds of legal ethics – who decides? The Bar of Overseers or the Judge?
• Page 110: Half a dozen friends came to lend moral support
• Page 116: Ethical consideration – not to be a witness against his client
• Page 219: Rules of science vs. the rules of evidence. Inexperienced experts who want to be scientifically accurate, really impede a case in the court system. Witness stand was no place to express doubt or uncertainty.
• Nature of judicial proof and the relation between it and the truth – case of the blue bus.
• Facher’s plea for more time
• Page 290: Was Schlichtmann ethically obligated to inform the families of the settlement offer?