class 6: legal liberalism and its critics

major elements of legal realism

influence of justice Holmes, judges don’t just “find the law” they formulate it, judges start from personal conception of justice not from precedent or rules, each decision involves choice, look at factors that affect legal actors when making choices, “law in action”

natural law critique of legal realism

too focussed on application and implementation, does not look at legitimacy of written law

legal positivism critique of legal realism

not enough attention to what is written in case law

critical legal studies critique of legal realism

too much focus on individual legal actors, not enough o n broader systemic issues

major elements of critical legal studies

roots in Yale law school

builds on legal realist approach

rejects view of law as neutral

adopts systemic perspective (should think about law as a broader system of distributing power, law distributes rights and obligations, protects some interests over others)

law as another form of politics

critical of political role of judges (judges as unelected officials who can distribute power)

critical of judicial method (judges know how they want to decide a case and choose a precedence to reach that conclusion)

major elements of feminist legal theory

rejects neutrality/objectivity of the law

must analyze differential impact of law on women

male-dominated jurisprudence (historically, legislators and judges were all male, only these perspectives are embedded in law)

legal structures reinforce patriarchy (matrimonial property and business expense examples)

criticizes public private divide (reluctance to implement law in private realm creates bubble where men have more power)

matrimonial property example

once married, a woman’s property would become her husbands, if a wife chose to divorce she would be left with nothing, matrimonial property divided according to titles of property which usually belonged to men since they would earn more

business expense example

income tax act allowed certain things to be business expenses, such as golf memberships, sports tickets, etc. case argued that childcare should be included and not including it was a violation of s 15, lost for not being closely enough related to business expenses

main arguments of the khan article

nixon vs rape relief, feminist group used the public/private divide to discriminate against a trans woman

major elements of critical race studies

rejects the neutrality of law

focus on differential impact of law on racial minorities

racism is more than individual attitude and practice (individual and systemic factors)

legal structures create and reinforce racism (slavery existed through law, criminalization of poverty)

critical analysis of legal process and structure (butler article)

main argument in the butler article

use of jury nullification by African American jurors can be justified for non-violent crimes against a racist legal system

major elements of social model of disability

response to medical and charity models

distinguishes between individual impairments and socially constructed barriers

rejects the notion that impairments need to be “treated” or “cured”

socially constructed barriers cause disabling impact

barriers often result from “ableist” assumptions

medical model

locates disability in the indovudal who has the impairment, response should be to try to cure disability

charity model

people with disabilities have individual impairments that we should help with by giving them handouts, focus on individual situation as the cause of difficulties