Law and Society – Midterm Questions & Answers. 100% Accurate, graded A+

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Law and Society – Midterm Questions & Answers. 100% Accurate, graded A+ Norm Enforcement - ✔✔-• Applying Social norms regarding statutes or prior court rulings • Based on pre-existing co... mmunity standards (habits - like stopping at stop sign while driving) Nature of Norm Enforcement "Process" - ✔✔-• Some mediation/interpretation when applying enforcement, typically expressed in courts • Trial courts are seen normally as applying normalities and previously existing statutes to the facts of the dispute and/or situation, not creating new standards or laws (includes 1 judge) • Done on case by case basis, not in a "blanket" manner Consequences of norm enforcements - ✔✔-• Enforce and preserve status quo (theoretically) • Labor injunction (employees asking for standards and/or rights, such as a Union) Policy Decisions - ✔✔-• Creating norms, not enforcing them • Appellate courts •Interpretation - Formal rationality (to state clearly the rationale for the interpretation that the judge would offer in a policy situation) • Court literally changed the law in certain cases (Miranda v. Arizona) Test Case - ✔✔-Set up to challenge the interpretation of a law/statute (Plessy v. Ferguson/Brown v. Board - 14th amendment in this case) Trial Court's Purpose - ✔✔-Norm enforcement. Decided on case by case basis Appellate Court's Purpose - ✔✔-Interpreting or Creating Policy. Creating norms, not enforcing them Distinctions between Trial and Appellate Courts - ✔✔-• Appellate courts review the decisions of trial courts and attempt to set standards through interpretation • Trial courts review facts of a situation. Appellate courts set "values" when reviewing an appealed decision of a trial court • Intent of the judges is different • Form of the decision is different. Appellate level has written opinions (dissents, support) for public record in order to be transparent and seem legitimate. Trial courts don't typically have a written opinion because it's a simple ruling • Scope of social impact is very small (applies only to the individual) in trial court and very large in policy decisions (impacts things down the road for the entire public) Value of the distinction between Trial and Appellate Courts - ✔✔-• Identify functions of different courts (functional analysis) • Trial courts practice routine application of rules - order maintenance - whereas policy decisions give formal analysis and rationale for interpretation • We should be able to apply both forms of legal rule to the complex nature of politics, because both apply directly in differing ways. Both forms exercise politics. ♣ A series of norm enforcement decisions leads to policy decisions (Zero tolerance on certain issues, including drug possession, illegal immigration, etc.) 3 Types of Jurisprudence - ✔✔-1. Natural Law - Locke's (Hobbs and Russo as well) doctrine of natural rights (based on moral principles) 2. Analytical or Positivist 3. Sociological Natural Law - ✔✔-Lock, Hobbs, Rouso - Existed before (modern) civil structure was created - These were inalienable rights held by the constituents or citizens of a governing body - Law is a set of immutable moral principles -They believed those who owned property should have a say in government. They have skin in the game Analytical or Positivist Law - ✔✔--Deductive reasoning from recorded facts and rules -Positive, meaning visibly written down officially, not some conceptual thought -We, as humans, make these decisions on what we believe is right and wrong, and judges will see what we've written down and will henceforth assess the facts in a case and deduce a verdict from our rules and reasoning. -By having our reasoning written down, we know it to be true. It is our order, not some arbitrary order out in the ether. -C Langdell challenged this jurisprudential teaching in law school, and was able to reform Harvard into teaching principles that judge's apply to decisions (C Langdell's "case method") Why do some people believe Analytical Law is a dangerous path to follow? - ✔✔-In the case of Hitler (check recitation notes), he used written law and "rationality" to justify his systematic marginalization of minorities like Jews. He was able to separate morality from reason, which is why many argue that we cannot create law that is inherently immoral. C Langdell's "case method" - ✔✔-Dean of Harvard Law School at some point - invented the case method, which says instead of teaching the law like in an apprentice model, we should train students to study doctrine in order to learn the principles that judges apply in decisions. Sociological - ✔✔-Roscoe Pound -Law is a social institution, not a mechanical system that applies to everything boiler plate. Law is run by humans who have opinions and subconscious beliefs that affect how they interpret the law -Law is not an objective science, but rather an art, which likely does not separate law and political Legal Realism - ✔✔-"Law on the books" v. "Law in Action". Legal Realists believe law has "life" and its application in the real world can't be viewed as narrowly as what's written on paper. Roscoe Pound - ✔✔--Believed that law evolved into a social institution, as it should be. Law could help make society better by being a vehicle for social change. -1905 - First Municipal Court. Pound believed these courts could help put law in action to progress society. -Pound also invented small claims courts. "The Fact Skeptic" - ✔✔-Jerome Frank. Judges don't just interpret facts, but they have beliefs and attitudes that affect decisions. Even the theatrics that a lawyer provides in court may sway them one way or another. "The Law Skeptic" - ✔✔-Karl Llewellyn o Problems with the "scientific study of law" and the call to create "more effective legal technologies" o We have to interpret the law to decide what is "reasonable" given the situation Legal Realist Social Science Approaches - ✔✔--Political Jurisprudence -Behavioral jurisprudence -Rational choices and strategic behavior (PPT) Give an example of Political jurisprudence and Behavioral Jurisprudence - ✔✔-Herman Pritchett, The Roosevelt Court o Studies the votes on the Supreme Court (FDR's court). Looks at which President appointed each judge and how that affects their judicial inclination, given their political bias. Political Jurisprudence - ✔✔-Ideas and reasons in law are seen through a political lens Behavioral Jurisprudence - ✔✔-Research on law and legal institutions. Looks at characteristics of those deciding policy or law and use that to understand reasoning for a decision. Pritchett's Roosevelt Court study Strategic (PPT) - Positive Political Theory - ✔✔-Emerged in 1950's-60's. Law is politics. Allows you to predict how a judge will rule/side on an issue depending on which political party they sympathize with and/or the President who appointed them belongs to. If a President believes they can further their political agenda by appointing politically sympathetic judges who will approve of the majority of their actions, they will. American Political Development (APD) - ✔✔-Work with historical research and quantitative data in order to understand patterns and predict judicial outcomes (typically regarding social movements). Constitutive Legal Jurisprudence - ✔✔-Relationship of legal and social phenomena is pulling apart what is constituted in law itself. Looking at how social forces shape the law while being simultaneously affected by the law. (Think NAACP fighting Jim Crow Laws) CLS - Critical Legal Studies - ✔✔-Legal movement that first appeared in 1970's. Claims laws maintain the status quo of society's power structures and that law is a codified form of society's biases against marginalized groups. A main goal is to demonstrate the ambiguity and possible preferential outcomes of supposedly impartial and rigid legal doctrines. Critical Legal Race Theory (CLRT) - ✔✔-- Theory is another example of contemporary legal theory deeply skeptical of liberalism - CLRT contends law and legal institutions are deeply ingrained w/ racism - Through interest convergence and material determinism the dominant white elites and those in working class perpetuate racism - CRT goes so far as to argue civil rights movement was a failure - Distinguishing characteristic of CRT jurisprudence is use of narratives and discourse to unmask a racial discrimination - Critical race theorists thus try to combine pragmatist and utopian visions; they draw upon a variety of critical strategies to expose how law constructs race to disadvantage persons of color while joining larger struggles for social transformation - One key focus of critical race theorists is a regime of white supremacy and privilege maintained despite the rule of law and the constitutional guarantee of equal protection of the laws. Feminist Jurisprudence - ✔✔-* Study of how law perpetuates gender inequality and cultural bias by distorting identity and sexual orientation Equality Theory: posits that legal institutions discriminate against women and subjugates them on the basis of gender difference Difference Theory: holds that women are biologically, psychologically, and socially different to be simply and satisfactorily compared with males Cultural Theory: feminists challenge earlier liberal feminists in celebrating (rather than lamenting) the difference between men and women Radical Feminism: legal recognition support and further gender equality and sexual self-determination (vs. patriarchy) "Myth of Rights" - ✔✔-Coined by Scheingold. Myth meaning "origin". Governed should consent to be governed Evokes the concepts of individual liberty ("state of nature"), private property, and limited government, but its application depends on the era. Subscribes to Whig Liberal thinking that the government must think in "negative" terms (Congress shall make no law...) that believes individuals have inherent rights that cannot be stripped without due process. Government is only there to protect citizens from having their "natural rights" stripped. Most effective in helping set up the LLN and liberal legal movements during the New Deal era through the 1960's. The 2nd wave of the CLM successfully invoked "property rights" and "individual freedom" into its narrative, which helped it succeed. • Rights claims activate people into political/social action • Arguments/issues of rights are most effective when they evoke a deeply held cultural belief -You don't need a majority to mobilize an argument for rights in a legal • Evokes a deeply held sense of right and wrong between people Law and Economics - ✔✔-- The law and economics school of thought holds that economic principles best explain legal arrangements affecting markets and noneconomic social behavior. - The theory presumes that individual freedom is best achieved in unregulated markets and that the legal process should be determined by the rational behavior of individuals seeking to maximize their material self-interests. - In Posner's view, resources are allocated efficiently and wealth is maximized only if free exchange is permitted. Because economic self-interest (not selfishness) drives behavior, human satisfaction is maximized only when highly valued resources are obtained through barter or exchanges. Law as a costbenefit analysis. Law and Economics theory was essential in allowing the 2nd attempt of the CLM to succeed, bringing about neo-liberalism among era of Reagan Kalder-Hicks Criteria - ✔✔-Richard Posner's Law and Economics standard that fully compensates those who lose in a scenario in which another wins (attempting to fix the inherent unequal nature of viewing law as a cost-benefit analysis) Whig Theory / Wig Liberalism - ✔✔-- Theory of negative rights, the constitution is written in no's - EX. - The government shall not.. [Show More]

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