Discussion Section Notes Week 2

Discussion Section Notes Week 2 - Discussion Section Notes...

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Discussion Section Notes Week 2 Announcements: Change in office hours Bspace website The question of what obligation we have to obey the law quickly bleeds into the questions of when and how are we justified in inflicting punishment. Speluncean Explorers: 1. Keen: Separation of powers/institutional considerations (sharpness of ideology) The judge’s role is to interpret the law as given by their plain meaning—the words simply have no exception in this context and with this fact pattern. The legislature could amend this statute if it felt it right to do so. Sharp separation of law and morality. Sharply positivist. 2. Truepenny: Positivist; no exception; appeal outside of the law (to executive clemency/commutation). The notion that the executive can bring morality into law—the true separation of powers function. 3. Tatting: Wants an answer embedded in the fabric of the law but cannot find one (note: the holding in Commonwealth v Parry is that self-defense is not “willful” action and therefore is an exception, giving Tatting a persuasive but not controlling guide, though it is a non/anti-textual result, and is a criminal case, Commonwealth v Valjean is a private necessity case). Doesn’t think an analytical result can be reached within the fabric of the law, he punts 4. Foster: Common sense; contextual perspective; purpose of the statute controls Purpose of the law is to punish those justly (only) and that in its deterrent design, should only deter acts which can be deterred (in the context of practical capacity to deter) Separation of powers is not so strict as to preclude contextual efforts to try to make law more compatible with the purposes of the law. 5. Handy: Public opinion 1. Strict separation of law/morality; judges aren’t good policymakers, are good at interpreting the positive law 2. At least there is some tension between law and morality, and will take the appeal across
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This note was uploaded on 04/02/2008 for the course LS 109 taught by Professor Kutz during the Spring '08 term at University of California, Berkeley.

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Discussion Section Notes Week 2 - Discussion Section Notes...

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