Legal 101 Midterm

Ewick & Silbey Study

Based on qualitative, face-to-face interviews with over 430 everyday individuals in New Jersey, exploring how ordinary people experience, interpret, and use the law in daily life.

Before the Law

Law is majestic, disconnected from ordinary life, authoritative and predicatable, defined by impartiality and equality of access.

With the Law

Law is a game of skill, deceit, manipulation and resources; good players get what they want; lawyers are critical.

Against the Law

Law is a product of unequal power, arbitrary, oppressive; generally disempowering; in response, people “make do” using what they can to get what they need; empowerment through evasion of the rules

Intersectionality

how multiple social identities such as race, gender, class, and sexuality, overlap to create unique, compounded forms of discrimination that laws sometimes fail to recognize

Traditional Natural Law

Law cannot be separated from morality; law comes from transcendent principles of goodness and is unchanging over time; only human laws in accordance with the natural law deserved to be called “law”

Modern Natural Law

also known as procedural natural law, morality is found in the procedures that are followed by those who create and apply the law

Criticisms of Traditional Natural Law

Criticisms of Modern Natural Law

Following the rules of procedural justice can happen in bad as well as good legal systems; the required procedures seem necessary but not sufficient for the achievement of justice (still says nothing about the content of the law)

John Locke

Believed that all men have the inherent right to life, liberty, and property; government should be designed to protect those rights, if it doesn’t, the people have a right to overthrow it.

Thomas Aquinas

Believed that, a just, man made, law promotes the common good, comes from a lawmaker who has not exceeded their authority, imposes its burnes on citizens fairly. “An unjust law is not a law”.

Martin Luther King

In his “Letter from a Birmingham Jail”, he reacted to a statement from white clergymen urging the Civil Rights movement to observe the principles of law. His response used a natural law framework to explain and justify his actions.

Lon Fuller (1902-1978)

Believed that law is “the enterprise of subjecting human conduct to the governance of rules”; laws guide the human behavior toward some larger purpose like justice; and that lawmaking is moral when its procedures lead to this purpose

Nazi Grudge Informant

Legal Positivism

The question of what law is is distinct from the question of what law ought to be; a morally neutral description of law is possible and desirable. A positivist account will make law more legitimate and provide judges and other lawmakers with authority.

Austin’s Command Theory of Law

Law is a the command of a sovereign, backed by force or threat of it, who is habitually obeyed and, who does not habitually obey anyone else.

Hart’s Primary Rule

Rules that apply directly to citizens, often commands to abstain from behavior

Hart’s Secondary Rules

Rules that govern the primary rules

Core of Certainty

In most cases, it is obvious that a rule applies

Penumbra of Doubt

In a small minority of cases, it’s not obvious that a rule applies to the case. Hart says that when in the penumbra of doubt, judges do not necessarily refer to a higher moral order when they make decisions.

Enumerated Powers

Implied Powers

Supremacy Clause

Preemption

Federal, state, and local lawmaking

Types of administrative agencies

Rule making

Precedent

Interpretation

Judicial Review

Jurisdiction

Standing

Civil cases

Criminal cases

State jurisdiction

Federal jurisdiction

Legal Umpire

Legal Activist

Judicial independence

Judicial accountability

Originalism

Living Document

State judicial selection processes

Federal judicial selection processes

Legal formalism

Legal realism

Legal precedent

Stare decisis

Common law

Demographics & life experiences

Political ideology

Strategic considerations

Types of juries

Jury Constitutional Amendments

Petit juries

Criminal juries

Civil juries

Positives & negatives of juries

Voir dire

Social Science research on juries

Jury nullification

Washington v. Anderson (2000)

Criminal offenses can be broken down into two general categories malum in se and malum prohibitum

• malum in se: an offense seen as “naturally evil”

• malum prohibitum: only wrong because a statute makes it so

John Austin (1790-1859)

Believed that a law, which actually exists, is law, though we happen to dislike it.

Secondary Rule: Rules of recognition

an authoritative way to know that something is a primary rule

Secondary Rule: Rules of change

empower people to create or eliminate primary rules

Secondary Rule: Rules of adjudication

empower people to decided whether a primary rule has been broken

H.L.A. (1907-1992)

Believed that a valid legal system requires that citizens accept the primary rules AND society’s officials accept the secondary rules as common standards for official behavior

8 Requirements of Procedural Justice

1. Laws should be universal/general

2. Laws should be transparent and promulgated

3. Laws should be understandable and clear

4. Laws are relatively stable throughout time

5. Laws should be administered as they are written

6. Laws should not be retroactive

7. Laws should not contradict each other

8. Laws should not be impossible to comply with