intro to legal studies pt 2

Max Weber

German sociologist that wanted to:

- understand how modern society became modern

- developed rationalization thesis to explain social action

Rationalization

The shift from traditional, religious, and emotional ways of life toward systems dominated by logic, efficiency, and bureaucracy

Rational

means for settling disputes defined by rules, decisions controlled by intellect

Irrational

multiple different rules can govern a particular case, decisions arrived at by use of luck or intuition

Formal

emphasis on procedures used to arrive at decisions, outcome determined without regarding ethical, social, political, or economic factors

substantive

emphasis on obtaining outcomes that meet/advance ethicial or political goals

- rules and procedures take back seat to ensure best outcome

paradox of rationalization

-laws become more rationalized over time through their use

- rationalization leads to more efficient administration of the law

- more efficient it is, less we need to use it

Trial by Ordeal

a way of determining innocence or guilt in which the accused person is put to a test that may be painful, stressful, or fatal

plea bargaining

a legal negotiation in which a prosecutor reduces a charge in exchange for a defendant's guilty plea

Base vs. Superstructure

- economy is base for everything in society and shapes it, always results in one class dominating another

- superstructure is everything else in society and maintains base (e.g. law, politics, education)

false consciousness

the idea that people from the lower class misperceive their true position in society and actively go against the best interests of their social class

Kelo v. New London (2005)

eminent domain, the practice of obtaining private land for public use, is an acceptable practice for governments to exercise for a legitimate public purpose

collective conscience

the shared morals and beliefs that are common to a group and which foster social solidarity

Emile Durkheim

- father of sociology

- believed society is made of structures, norms and values that function together (fucntionalism)

- argued social order maintained through solidarity

mechanical solidarity

a type of social order maintained by the collective consciousness of a culture

organic solidarity

a type of social order based around an acceptance of economic and social differences

Durkheim's Theory of Crime & Punishment

-crime is normal, society cannot function without

- punishment shows collective conscience still exists, maintains social solidarity

Repressive Law (Durkheim)

characteristic of mechanical solidarity, where offenders are likely to be severely punished for any action seen as an offense against the collective conscience

Restitutive Law

characteristic of organic solidarity, where offenders are asked to comply with the law or to repay (make restitution) those who have been harmed by their actions

Critical Race Theory

the study of the relationship among race, racism, and power

Feminist Legal Theory

Sees power as a matter of gender- those who create law in their interests are male. Analysis of how law treats women.

Intersectionality

how social structures and institutions reinforce interlocking systems of oppression and privilege, reveals how overlapping identities (race, gender, class, sexuality) can shape experiences with law

Social construction of race

the school of thought that race is not biologically identifiable

Redlining

A process by which banks draw lines on a map and refuse to lend money to purchase or improve property within the boundaries.

Discretion

the power or right of a legal actor to make official decisions, choosing from a a range of authorized options

Broken Windows Theory

signs of disorder lead to crime and urban decay

Procedural justice

fairness of process police make decisions matters more than outcome of those decisions

Fruit of posionous tree doctrine

excludes evidence obtained through illegal means

Qualified immunity

ability to not be sued by citizens for civil damages if they were doing their job

plantiff must prove..

- federal rights were violated

- violation was deliberate or conscious disregard, not just negligence

- officer was using power of the state

Retribution

punishment for act committed, matches impact of crime on victim

Incapacitation

Prevents violators from offending by taking them off the streets

Deterrence

prevents violator or other potential violators from breaking law because they fear consequences, may include shaming as part of punishment

Rehabilitation

makes violator into productive member of community

Governing through Crime

Form of governance that uses fear of crime to enhance social control

Crimmigration

criminalization of immigration

Dynamic court

courts are effective for change, insulated from politics so they make controversial decisions

Constrained court

courts are unable to produce social changes on their own

The Hollow Hope (Rosenberg)

idea that courts drive social change is a hollow hope, change happens when gov and public are ready

Brown v. Board of Education (1954)

ruled that even if schools were equal in facilities, the segregation itself creates inequality

- landmark case often used to think about whether law can create social change

Brown v Board (1955)

Ordered schools to desegregate "with all due and deliberate speed."

Plessy v Ferguson (1896)

Plessy (7/8 white) sat in whites only car and didn't move, supreme court upheld conviction cause segregation was constitutional as long as facilities were equal

- established doctrine of seperate but equal

specific detterence

punishment inflicted on criminals to discourage them from committing future crimes

general detterence

punishment inflicted on criminals to make example out of them to deter others from committing crime

Gaines v. Missouri (1938)

first major win for the NAACP In a Supreme Court case. ended racial segregation in public education

Parents Involved v Seattle (2007)

Supreme Court denies Seattle's voluntary integration effort to maintain diversity in high schools

- students could apply to any high school, where demand highest race was tiebreaker (race = white/non-white)

strict scrutiny test

for state law/policy to use race as categorization scheme, supreme court required this test

requirements were..

- compelling state interest

- law or policy narrowly tailored to achieve interest

- law must be least restrictive

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination

de jure segregation

legally mandated segregation

de facto segregation

non-legally mandated segregation

Swann v. Charlotte-Mecklenburg Board of Education (1971)

school district have duty to achieve racial balance, busing students out of their area is constitutionally permissible

backlash thesis

court victories can provoke opposition that sets a movement back

Defense of Marriage Act (1996)

defined marriage as between one man and one woman, allowing states to refuse recognition of same sex marriages from other states

Obergefell v Hodges (2015)

held 14th amendment guarantees right to marry for same sex couples nationwide

- relys on equal protection and liberty clause

Petit juries

jury of no more than 12 members who make determination of fact, must be unanimous to convict for serious crimes

Grand Juries

make decision on idictment, proceedings are secret

5th Amendment

guarantees indictment by grand jury for capital or other serious crimes (1+ year imprisonment)

6th Amendment

guarantees speedy and public trial, impartial jury in state/district where crime committed

7th Amendment

guarantees jury in cases over $20 at issue

voir dire

jury selection process