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Commonwealth v. Cali (Mass., 1923)
 man started a fire and didn’t extinguish or call the fire department, he was ignorant that he had to. This was not an acceptable excuse or defense.

PRINCIPLE OF LEGAL IGNORANCE -- "Ignorantia juris neminem excusat": Ignorance of the law is no excuse.
Lambert v. California (1957)
- Principle of Legality and Ignorance in conflict: Legality modifies legal Ignorance, you are only expected to know public, fixed law. Ignorance of facts can be a legal excuse. When legal duties are extremely unusual, legal ignorance can be acceptable.
o ex: Lambert v. California (1957)
 Lambert was unaware of a CA law to register as a felon. He was found innocent on terms of legal ignorance. The law was obscure enough that most people would not know about it.
o it is still possible to be ignorant of the law, there are many variations between states
o Brandt suggests that this occurs where the law is stricter than our moral judgment
Role Responsibility
duties associated with a certain role in social, legal, or moral institution.
Causal Responsibility
causal connection, example a storm caused certain damage.
3. Liability Responsibility
moral and legal usages which identify certain conduct as violating an applicable moral or legal standard.
4. Capacity Responsibility
usages which identify the presence of normal capacities of choice and deliberation by virtue of which persons are found responsible, and the absence of which identifies the nonresponsible.
- Robinson v. California
Supreme Ct. declared unconstitutional (as cruel and unusual) a statute making narcotic addiction criminal.
- Powell v. Texas
the doctrine that criminal liability cannot be applied to status crimes was clarified and determined not to include public drunkenness acts.
Law of inchoate crimes
criminal acts do not have to be completed; punished less severely than completed crimes
United Novelty Co. v. Daniels
- Daniels was a 19 year old janitor -> cleaning vending machine w/ gasoline
- Rat doused w/ gas ran under gas heater
- Daniels burned to death as a result of the rat
- Company found negligent -> family awarded full compensation
Palsgraf v. Long Island RR Co
- Palsgraf standing on railroad platform besides scales
- Man with package trying to catch departing train
- Package falls on tracks -> detonates the fireworks inside of it
- Scales fall on Mrs. Palsgraf who is injured and sues
- RR company found to be not guilty of negligence
- A cause in fact -> member of causal sequence (initial)
- Approximate cause in fact -> immediate cause
- Only wrong to man w/ package, not Palsgraf
U.S. v. Dotterweich
- Three counts went to jury against Dotterweich?two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug
- Dotterweich was found guilt on all three counts
- The legal statue involved in this case is Statute 301, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug.
o Regina v. Prince
Prince was convicted of ‘corrupting a young girl without her father’s permission.’ He was duped into believing the girl was 18 when she was only 16. Even though it wasn’t his fault that he had sex with the girl under the supposition that she was an adult, his punishment was deemed necessary from a moral point of view.
o People v. Hickman
During a robbery, an officer shot another plain-clothes officer believing him to be a suspect. The plain-clothes officer died. Hickman, who was fleeing from police was not near the scene nor did he fire the shot, but was held liable in the murder.
four categories of strict liability:
o Basic Offenses dispensing in whole or in part with mens rea
o Negligence as a mode of culpability
o The barriers of ignorantia legis
o Public welfare offenses
 M’Naghten rules
• At the time of the crime, the defendant was suffering from a defect of reason
• This defect of reason arose from a disease of the mind
• Due to this disease, the defendant either:
o Didn’t know the nature or quality of the act
o Didn’t know the act was wrong
o A.L.I—defense of insanity is possible if
• The defendant had a mental disease or defect, which caused in the defendant either:
o Lack of capacity to appreciate the nature, quality, or wrongness of the act
o A lack of capacity to conform his conduct to the law
o Moral guilt theory—retributivism
 Not criminally liable for act unless acted morally wrong; if act this way be forced or mentally instable shouldn’t be punished because as a normal person you would do it, you would be moral
 “Economy of threats”--utilitarianism
⬢ Recognize threats to maintain public order with lowest punishments because punishment causes pain you can maintain order by threatening order
 Mercantile theory (law as a choosing theory)
• Wastefully punishing people that are insane can’t deliberately do something by accident
There is no legal duty of rescue without either
1. a statute requiring rescue, or
2. a special relationship to the one requiring rescue of one of the following kinds:
a. a status relationship to another (e.g. mom, dad)
b. a contractual duty of care
c. a ‘seclusion’ relationship (i.e. one has secluded the one needing aid so as to prevent others from giving aid)

So merely by virtue of being at the scene of the harm happening, even if you’re the one there, isn’t enough to impose a legal obligation. The moral duty does not seem to be enough here.
o Penry v. Lynaugh
murderer with IQ of 64 and mental age of 6 ½ is found not insane and competent; Court rules it acceptable to execute the retarded if retardation is considered during sentencing
o Atkins v. Virginia
bans execution of retarded in large part because of 30 states’ “emerging consensus.”
o Stanford v. Kentucky
allows execution of 16- and 17-year olds
o Roper v. Simmons
evolving standards of decency” and being by definition “juvenile” do not allow further execution of those under 18
McCleskey v. Kemp
): black man shot and killed a white police officer during an armed robbery, admitted his involvement in the crime but denied shooting the officer despite ballistic evidence (bullet was from his type of gun); aggravating factors (cop), no mitigating factors, inmate testimonies; was appealed under the 8th amendment
1) Literalism
Punishments that cause great suffering and happen infrequently that are literally cruel and unusual by their nature. Shouldn’t be a necessary condition to define as cruel and unusual.
2) Historical Authority
The only punishments banned are the ones found cruel and unusual by the forefathers in the Constitution at the time it was written. This doesn’t work because they could not foresee how things would change requiring new standards.
3) Consensus
Punishments should be based on general public opinion and employed by representing legislators. Problem is that this rejects the sanctity of constitutional review and defeats the purpose of the bill of rights. Also, it is said to be redundant because you flip between punishment P being wrong because of property Q, or Q being wrong because the consensus P. (Page 158)
4) Utilitarianism
Punishments are allocated so to use the “least restrictive alternative” test whereby criminals are punishments the minimal amount to make society happy. The problem comes about when there are very violent crimes, in which mutilation and torture becomes an issue as a means of punishment.
Furman v. Georgia
The death penalty applied in an arbitrary and capricious way. Tends to be used upon the poor and blacks and almost nobody else. These conditions warrant that we:
1) Devise ways to keep capital punishment from being applied in an arbitrary manner
2) Ban capital punishment outright
A punishment is ?cruel and unusual? if:
1. It degrades human dignity (as in (a) torture or (b) grossly disproportionate punishment)
or 2. It is inflicted arbitrarily
or 3. It is rejected as wrong or unjust by society
or 4. It is unnecessary or ineffective.
Rejects report of Wolfenden Commission, which holds that private immorality is none of the law's business
⬢ Mill
harm principle on liberty states that the “sold reason for which society may interfere with the conduct of an individual is the prevention of harm to others” – this includes public and private harms

• Mill therefore rules out:
o Paternalistic laws: that prohibit you from harming yourself or that prevent you from your own chosen actions
o Moralistic laws: in which society prohibits otherwise harmless acts which it sees as immoral
Fienberg’s article on social philosophy
p. 191 he gives us principles of legal list of acts that are judged immoral:

A good way to calculate whether you have harmed someone is to notice when you owe an apology.
Private Harm Principle
it is legitimate to prohibit acts which harm other individuals (e.g., murder, rape, assault).
Public Harm Principle
it is legitimate to prohibit acts which harm society as a whole (e.g., treason, counterfeiting).
Offense Principle
it is legitimate to prohibit acts which offend others (e.g., public nudity, homosexuality, prostitution). – This is the major aspect of the arguments discussed in class. The state is justified in restriction liberty to prevent citizens offending others. This argument is similar to that of the harm under certain kinds of offenses.
Standard of reasonable avoidability
that is done in private indoors. Or people who guess what we are doing in the private in our rooms and thus it is unreasonable enough for them to be offended by such acts.
Paternalism Principle
it is legitimate to prohibit acts which harm the actor (e.g., suicide, substance abuse).
Welfare Principle
it is legitimate to prohibit certain failures to benefit others (e.g., bad Samaritanism). Non-feasances rather than mal feasances
restrict porn. porn that degrades women
Barnes v. Glen Theatre
the S. Ct. ruled that nude dancing may be banned if deemed harmful or offensive to public morality
- Rehnquist wrote the opinion of the court and the statute was upheld 5-4
- Souter in the majority—appeals to the Harm Principle, he states that nude dancing provokes rape and assault (but he does not provide a reason to believe this is causation
Rogers v. Elliot
the ringing of church bells made Rogers have seizures—the S. Ct. ruled that Rogers needed to take his own precautions
a. attitude-dependent offensiveness
i.e. public nudity, public fornication
c. natural offensiveness
i.e. noises, smells, etc
a. conscientious offensiveness
the purpose of the offensive act is to coerce people to change
b. People v. Cohen
Cohen wore a jacket that said “Fuck the Draft”
i. S. Ct. struck down the conviction—they said people could avert their eyes (reasonable avoidability)
c. non-conscientious offensiveness
frivolous, malicious offensiveness
- Longino determines that pornography degrades and dehumanizes women, it implicitly, if not explicitly recommends sexual behavior that is immoral
Miller v. California (1973)
(1) Would the average person, applying local contemporary community standards, find that the work, taken as a whole, appeals to prurient interests?
(2) Does the work depict or describe, in a patently offensive way, sexual conduct (as defined by state law)?
(3) Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

If the answer is "yes" to each of (1)-(3), the work is obscene, it is not protected by the First Amendment, and its production and distribution can be legally prohibited.
⬢ Definitional Approach to porn
Porno degrades women because it IS sexually explicit material that degrades women.
⬢ Descriptive Approach to porn
Porno is defined as sexually explicit material designed to induce sexual arousal, and that by virtue of its contents, some can be described as degrading to women. However, some descriptions can be subjective.
⬢ Metaphysical Approach to porn
It looks as the deeper meaning of porno by probing beneath the surface in order to reveal its latent meanings.
Roth v. US (1957
defined obscene materials as those which appeal to prurient interests under community standards; ruled that obscenity is not protected free speech
Stanley v. Georgia
ruled that people have a constitutional right to possess pornography but not to distribute it
Miller v. California
(1) Would the average person, applying local contemporary community standards, find that the work, taken as a whole, appeals to prurient interests?
(2) Does the work depict or describe, in a patently offensive way, sexual conduct (as defined by state law)?
(3) Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

If the answer is "yes" to each of (1)-(3), the work is obscene, it is not protected by the First Amendment, and its production and distribution can be legally prohibited.
Lawrence and Garner v. Texas
ruled 6-3 that Texas sodomy laws violated the due process clause
Alan Soble
rejects the claims of feminists that pornography should be legally interfered with on the grounds of degradation or endorsement as they are argued.
⬢ Positive Duty
there are reasonably strong positive duties to help people face-to-face; causation is no matter; moral duty to help
⬢ Causation strategy (Harris)
moral background is of no matter; duty not to cause harm
⬢ Responsible strategy
omissions to act count as act when moral duty to intervene; similar to Harris
• Mack feels that a positive duty cannot affect the metaphysics of causation. Therefore, the law should care about duty and not Newtonian law. If (4) is violated then one should be allowed to migrate duty to causation.
• In all, negligence is predicated on the fact that duty → causation
• Wootton – “the therapeutic view”
o Treat criminals as sociopaths and isolate them
o Free criminals as soon as they are cured
o Minor offense could imprisoned for life if they don’t take to treatment
o Preventative detention would be justified before actus reas and mens rea
⬢ Rule utilitarianism
o Adds conditions to enforcement so that random punishment cannot be done
o Does not prevent punishment of family to coerce a criminal to come in
⬢ Theory fails to give restraints to punishment.
Mill-Gipin debate
anti-capitol punishment
Penry v. Lyravan (1989)
Penry raped, stabbed and killed women, had an IQ of 54 (mental age of a 6 ½ year old)
Atkins v. Virginia
prosecuting mentally retarded (IQ below 70) violated 8th Amendment – emergence of popular opinion

(c) Underage killers
• irreversible penalty is unjust if administered unequally
• mandatory death sentence for certain offenses
ï‚® ruled unconstitutional by Supreme Court
- Regins v. Prince
statutory rape; girl lied and said she was older, but Prince was convicted anyways – even if he did not know it was illegal, act was still immoral
 Paternalistic Laws
laws prohibiting you from harming yourself
 Moralistic Laws
society prohibits (otherwise harmless) acts which it sees as immoral (incest, consensual sodomy, etc.)
- Wolfenden Committee
o Act of prostitution is legal
o Scrap homosexual laws being illegal
o Reasoned on basis of private choice of immorality
o Private realm – where our acts don’t harm
Bowers v. Hardwick
- Supreme Court upheld Georgia statute that prohibited sodomy.
- Ruled 5-4 in favor of Bowers, the attorney general of Georgia
- Hardwick said that intimacy is an important part of all lives, and that private, consensual sodomy should be tolerated.

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