Crimes & Torts Legal Studies 210
10:00 MWF Peter Suber Carpenter 322 Spring 2002-2003 Syllabus
This course is an introduction to two related and fundamental branches of law in the United States. No legal background is assumed. We will experiment in approaching law as a liberal art, not professionally or pre-professionally. In the course of examining the elements of representative crimes and torts, various defenses to them, and aspects of related procedural law, we will explore the deeper policy questions they raise. Which acts should be tolerated and which prohibited? How should we punish wrongdoers and compensate victims? When under current law do we hold people responsible for their actions, when do we excuse them? When should we do so? What social goals are served by these basic policy decisions and what goals should they serve?
We have two textbooks in this course:
- Joshua Dressler, Cases and Materials on Criminal Law, West Pub. Co., second edition, 1999.
- Dan B. Dobbs and Paul T. Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury, West Pub. Co., fourth edition, 2001.
I've created a course home-page containing a collection of hand-outs and course-related web links at http://www.earlham.edu/~peters/courses/ct/cthome.htm.
Works and pages cited for a given day will be covered that day in class and should have been read in advance. Pages in brackets are recommended but not required. Writing assignments due on a given day are due at the beginning of class.
Week 1. January 13-17 Mon No class Wed First class; no reading due Fri This syllabus; generic hand-out; Dressler 1-14, [14-19], 19-28, introduction Week 2. January 20-24 Mon Dressler 111-118, [118-121], 121-129, acts and omissions Wed Dressler 212-215, [216-223], 229-248, homicide Fri Dressler 248-256, 266-273, [273-277], 277-284, homicide cont. Week 3. January 27-31 Mon Dressler 891-899, [899-911], 911-923, assisted suicide Wed Dressler 353-383, rape Fri Dressler 383-385, [385-394], 394-420, rape cont. Week 4. February 3-7 Mon Dressler 131-149, mens rea, intent Case judgment #1 due Wed Dressler 172-193, mistake of fact and law; [200-209] proximate or legal cause Fri Dressler 435-441, [441-452], 452-462, [462-465], 466-479, defenses, burden of proof, excuses, justifications, self-defense Week 5. February 10-14 Mon Dressler 480-506, self-defense, cont. [506-510] defense of others Wed Dressler 526-548, necessity Fri Dressler 548-561, [561-568], 568-574, excuses, duress Week 6. February 17-21 Mon Dressler 574-589, 662-680, intoxication, addiction Library report #1 due Wed Dressler 589-609, [632-637], insanity; [641-662], diminished capacity, infancy Fri No class, mid-semester break Week 7. February 24-28 Mon Dressler 680-694, 188 (note 4), defenses based on deprivation, cultural difference Criminal law paper topic due Wed Dressler 155-172, [284-285, 288-295], strict liability Fri Dressler 923-943, vicarious and corporate liability Week 8. March 3-7 Mon Dressler 29-49, [49-69] 77, punishment Wed Review day, criminal law, no reading due Thu No class, but... Criminal law paper due (10:00 am) Fri Dobbs 1-9, [9-20], 20-32, introduction to torts Week 9. March 10-14 Mon Dobbs 35-56, battery Wed Dobbs 56-66, assault, false imprisonment; 498-505, intentional infliction of emotional distress Fri Dobbs 901-918, defamation Week 10. March 17-21 Mon No class, spring break Wed Fri Week 11. March 24-28 Mon Dobbs 71-77, harms as civil rights violations; 987-994, discrimination; 918-926, malicious prosecution and abuse of process Wed Dobbs 78-93, [94-103], defenses to intentional torts Fri Dobbs 105-123, introduction to negligence (the general duty of care); [123-136], negligence per se Week 12. March 31 - April 4 Mon Dobbs 137-153, breach of duty; 192-201, cause in fact Case judgment #2 due Wed Dobbs 216-233, legal or proximate cause Fri Dobbs 233-248, intervening cause Week 13. April 7-11 Mon Dobbs 249-261, [261-274], contributory and comparative negligence Wed Dobbs 275-287, assumption of risk; [304-305], compliance with statutes Fri Dobbs 337-344, [344-358], 358-370, medical malpractice Week 14. April 14-18 Mon Dobbs 424-442, nonfeasance and duty to act Library report #2 due Wed Dobbs 534-544, wrongful life Fri Dobbs 545-555, wrongful death Week 15. April 21-25 Mon Dobbs 557-573, [573-589], vicarious liability; [590-605], 605-622, 690-693, strict liability Tort law paper topic due Wed No class; I'll be out of town Fri No class; I'll be out of town Week 16. April 28 - May 2 Mon Dobbs 798-806, punitive damages; 807-818, [885-896], 897-899 tort reform Wed Review day, tort law, no reading due. Evaluation form due before next class Fri Last class; no reading due; oral evaluation Tort law paper due Assignments
Title Due date Weight Description Case judgment #1 February 3 15% 2-3 pp. not counting the statement of facts. On a criminal case. Details. Library report #1 February 17 5% 2-3 pp. On a criminal law topic. Details. Criminal law paper March 6 20% 8-12 pp. Topic due February 24. Details. Case judgment #2 March 31 15% 2-3 pp. not counting the statement of facts. On a tort case. Details. Library report #2 April 14 5% 2-3 pp. On a tort law topic. Details. Tort law paper May 2 20% 8-12 pp. Topic due April 21. Details. Evaluation form April 24 0% Due any time before the last day of class. Use the hardcopy form I will hand out or print yourself a copy of the online version. Participation Daily 20% Attendance plus helpful, voluntary participation in every discussion. Details. With the exception of library reports, you must submit all assigned work to pass the course.
For this assignment, use the library or one of our case books to find the facts of an actual case, the first a criminal case and the second a tort case. State the facts so that both sides would agree on the fairness of your statement. State the question to be decided, which should be substantive, not procedural. Then decide the case and argue for your decision.
The factual part of your paper should be fully documented. Use footnotes or endnotes, and give full citations to your sources (author, title, journal or publisher, date, pages).
Let the statement of relevant facts take as long as it must. The rest of the paper (your decision and argument) should be 2-3 pages.
If you can't find certain facts that are relevant to your judgment, then tell us what you'd like to know and how it would affect your judgment. For example, "The newspaper story didn't say whether the gun was loaded. If it was, then ..., but if not, then ...."
Your decision should follow the law as you think it ought to be, not necessarily the law as it is, if the two differ. Be as precise as you can on the legal test of liability you think we ought to use, and as explicit as you can in your arguments in favor of that legal test.
You may use a case from one of our case books, or from any appellate case reporter, provided that you differ from the original judge on the verdict. The point of this requirement is not to force you into dissent, but to steer you away from cases where the assignment is essentially done for you already by the original judge.
Presently I assign only one case judgment in each unit (one in criminal law, one in tort law). If you would like a chance to explore more issues in this format, then you may replace the library report with a second case judgment. You may do this in either or both units, if you like.
Each of the longer papers should answer a normative question, the first from from criminal law and the second from tort law. Pick a specific topic within that branch of law and ask what the law should be on that topic. For example, in criminal law you might focus on the insanity defense, statutory rape, or strict liability. In tort law you might focus on defamation of public officials, wrongful birth, or punitive damages. The narrower your topic is, the better.
State your topic as a question. For example, don't just write about statutory rape. Ask a specific question about it, such as, What should the age threshold be? Should the statute be gender-symmetrical? Should there be a defense for good faith or reasonable mistake of age? If consent is not a defense, should it at least mitigate the offense? Should we abolish statutory rape and rely only on the forcible rape statute? And so on. Frame your question so that you'd be happy to have me grade you on the directness and adequacy of your answer to that precise question.
First, give a survey of what the law already is on your question. Second, use research from any field (e.g. anthropology, biology, criminology, economics, history, law, philosophy, politics, psychology, sociology) to illuminate the issues. Third, explicitly formulate your proposal on what the law ought to be, and argue explicitly in support of the changes you recommend, taking arguments for contrary positions into account. Each of these three tasks is roughly equal in weight and should therefore get roughly equal space in your paper. Separate your three sections and label them clearly (e.g. Section 1, Section 2, and Section 3).
In Section 1 (survey of existing law), you'll have to do some research that is, you cannot do it all out of our case book. Your research will consist of cases and/or statutes from the jurisdiction(s) on which you've decided to focus. Be explicit on the current legal test(s) of liability. Make sure you go beyond the statement of existing rules to their underlying rationale. Only that way will you know what arguments you need to answer in order to justify your reform. To be realistic about your time and our resources, you may limit this survey to one or two jurisdictions if you like. But on the other hand, the purpose of this survey is to show you variations on the theme and pro and con arguments that you would not otherwise have considered. To learn the law in some quite different jurisdictions, or in some other legal traditions, would broaden your outlook on these variations and arguments and give you valuable perspective. Cite your sources for all factual claims.
In Section 2 (interdisciplinary perspective), you'll also have to do some research. This might include scholarship on your topic from the disciplinary standpoint of anthropology, economics, history, philosophy, politics, psychology, sociology, some other field, or some combination. If you can find any, review scholarship from any field commenting on the fairness or effectiveness of the existing law, recommending reform, or evaluating reform proposals like your own. Use these perspectives to inform and support your position. Cite your sources for all factual claims and positions taken by other authors.
In Section 3 (your reform proposal), go beyond a grievance with existing law to a proposal that will do better, and connect your proposal to your discussion in the first two sections of the paper. Don't fail be explicit on elements of the offense, or the legal tests of liability, and their connection to your policy goals. We will want to know what you think the law should be, how we would discriminate between guilty and innocent defendants under your criteria, and why your proposal is superior to existing law.
For most students, Section 3 is the weakest part even though it requires no research. The most common weaknesses in Section 3 are lack of detail, precision, or clarity on the legal test for liability, and meagerness of supporting argument for the proposed reform.
Your research may be done on the web and/or in Lilly Library. Because the research will take some time, start early. Your topic will be due in writing roughly ten days before the paper itself is due. Include a bibligraphy of the works you consulted. The papers should be 8-12 pages not counting the bibliography.
Feel free to do the library reports on the topics of your large papers. If you have picked your topics early enough, this will allow one piece of work to help in two causes.
If you submit a self-addressed, stamped envelope with your final (tort) paper, then I will mail it to you after classes end. If you put your campus mail box number on it, I will mail it to your campus box.
See my generic hand-out for details on paper mechanics, lateness, rewrites, and the option of having me grade your paper by email.
When the enrollment is large, this must be a lecture course, perhaps with weekly discussion groups. When the enrollment allows, however, we will make it a discussion course.
I hope to make use of electronic discussion to continue and deepen our in-class discussions. I've set up an email list for this course. If you send an email to the list, then everyone in class receives a copy automatically. To use the list, simply send email to ct or email@example.com. For answers to common questions about using such a list, see my electronic discussion hand-out.
The chief elements of participation are attendance, preparation for class, and performance in (live and electronic) discussion. See my generic hand-out for details on participation in discussion.
How to read legal cases
Almost all of the reading for this course will consist of actual legal cases. These are judgments written by judges. They generally state the facts of the case, the rules of relevant law, and the verdict.
"To brief" a case is to write a concise summary of its key elements. A good brief answers the questions: who did what, what did the court say about it, and why? A complete brief includes these components:
- The name of the case and its citation. A full citation includes the court, the year, and the volume and page numbers of the relevant volume of case law. There is a standard citation format for all this information; you will see it used in our case books but need not use it yourself in your briefs.
- The procedural history. Most of our readings are appellate cases. The procedural history tells us what the lower courts decided and what issues are to be decided on appeal. It will also tell us who is the "petitioner" or "appellant" (the loser at the previous stage who has initiated this appeal) and who is the "respondent" or "appellee" (the winner at the previous stage whose victory is being challenged in this appeal). By telling us who who at the previous stage, it also tells us what "affirmed" and "reversed" mean.
- The facts. Include all the facts on which the judgment depends (or ought to depend), and only those facts. Practice stating the facts so that both sides would agree that your statement is fair.
- The issue.This is the question of law to be decided by the court. Different sides may frame the issue differently. How does the court frame it?
- The reasoning. What arguments does the judge offer in support of his or her judgment? Relevant rules of law will be important premises in this reasoning but not the whole story. The judge will also offer arguments on how to interpret those rules, why they and not some other rules are most applicable to this case, and why they require the verdict the judge announces in this case.
- The outcome. This could be a simple verdict of guilty or not guilty, an affirmation or reversal of a lower court ruling, or something more complicated.
- When writing up the outcome, note the important but slippery distinction between holding and dicta. The holding is the part of the case that the parties care about most the verdict. It usually includes a part that lawyers and future courts also care about a rule articulating that acts of this kind will be treated in this way. For this reason, the holding is sometimes called the rule of the case. If you stated the issue of the case as a question, then the holding is the court's answer. Dicta (short for obiter dicta) are assertions unnecessary to the holding that the judge makes along the way to the holding. ("Dicta" is plural, "dictum" is singular.) The holding is law; dicta are incidental remarks. The holding has precedential force; dicta do not. A good brief always includes the holding. If it includes dicta, it will label them as dicta.
You should take notes on the reading as you do for all your courses. Whether you write formal "briefs" in your notes is up to you. But I think you'll find that a brief is a very helpful way to study a case. You may be surprised to discover that with practice your briefs become both more complete and shorter.
Your briefs, or notes, could also include many kinds of questions. What if the facts were different in this or that way? Did the judge give sufficient weight to this or that fact? Did the judge ignore (or distinguish) a line of cases which you think strongly relevant? Is this case consistent with other cases raising similar questions? Is this rule of law fair? Was the case rightly decided? What are the likely social and legal consequences of this decision? Did the dissent have a better argument than the majority? Which of the judge's arguments are based on law and which on "policy"? What vision of human beings, social life, injury, justice, or law does this case convey?
Books on reserve
The following books are on 3-hour reserve for this course in Lilly Library.
- Michael Gorr and Sterling Harwood (eds.). Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure. Westview Press, 1992.
- Michael Gorr and Sterling Harwood (eds.). Crime and Punishment: Philosophic Explorations. Jones and Bartlett, 1995.
- Saul Levmore (ed.). Foundations of Tort Law. Oxford UP, 1994.
- David G. Owen (ed.). Philosophical Foundations of Tort Law. Oxford UP, 1995.
In doing legal research, I'd start with the links on my page of course-related web links or with the following reference works in Lilly Library:
- The Guide to American Law
Ref/KF/156/G7.7 (1983, 17 vols)
- Encyclopedia of the American Constitution
KF/4548/E5.3 (1986, 4 vols)
- Robert J. Janosik, Encyclopedia of the American Judicial System
Ref/KF/154/E5.3 (1987, 3 vols)
For serious research into cases and statutes, you should use Lexis, for which you will have hands-on instruction early in the semester.
This course satisfies no general education requirement. Apart from serving the Legal Studies minor, it is simply for the greater civic intelligence and effectiveness of citizens who live under the laws we will study, and who exercise some power, and therefore responsibility, over their future shape.
Return to the course home-page.
Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374.
firstname.lastname@example.org. Copyright © 2000-2003, Peter Suber.