jr test #1 review

Primary function of the court

dispute resolution mechanics, more fair, official version of the truth, make society accept their solution, enforce a state monopoly on violence

how else can you set up a court?

judge can have more say (lead discovery, ? witnesses), commission (lead discovery)

for adversarial system to work perfectly, what must be true?

contestants of equal ability (lawyers and resources ($) are equal

why would having more money give one advantage in adversarial system?

call more experts, more in discovery, invest in more and better attorneys

disadvantages of having less money in adversarial system?

less resources, fewer expert witnesses, less discovery. in civil case: settlement. in a criminal case: you need to go and work and support family, so you’re more likely to take a plea deal even though odds at trial are good.

what is a plea deal?

criminal case agreement where the defendant pleads guilty to a lesser charge/receives a more lenient sentence in exchange for avoiding trial.

example: police department performance based on # of convictions, what might you be tempted to do?

1st: this is a “moral hazard” (structure incentivizes strategy deemed immoral), i would patrol poorer areas since adversarial system makes poor defendants at disadvantage and more likely to take plea deal. not patrol richer areas who are more likely to fight in court.

what is a settlement?

civil case agreement between disputing parties that resolves case/claim without a trial

example: how would you fix police structure?

not judge performance based on how many convictions, judge based on crime rates

“The Prototypical Court,” what is Shapiro doing here? How is he approaching the role of a court in society?

approaching it in a legal anthropologist way: looking at history to determine how societies constructed courts (“court” loosely). goal is how to get losing party to lose peacefully.

The Logic of the Triad: what does he refer to here?

2 people at dispute and mediator. 3rd is someone everyone respects and is neutral (no neutrality = violence). 3rd must side with someone in the end. losing party must also believe that process is fair to lose peacefully.

typical mechanism by which societies have resolved this tension? how have they arranged it so that the losing party accepts the ruling?

consent. consent on judge, rules, and laws.

How does consent work to get the losing party to accept ruling?

social pressure. “you knew what you were getting into, so please lose peacefully”

Shapiro notes it was common to insist upon the presence of both parties. why?

looks unfair if one party doesn’t show.

Different types of “3rds”: the “go-between”

party 1 and 2 are separated, 3 acts like a messenger. avoids potential for violence. massages messages, has an active hand in facilitating agreement.

Different types of “3rds”: the mediator (non-binding)

more open settlement activity. may not IMPOSE solutions, but handles competing offers from parties. brings 2 parties that have completely different viewpoints and brings them to a closer agreement.

Different types of “3rds”: the mediator (binding) Arbiter (usually binding)

mediate then enforce solution at the end. solution is binding if binding mediator

Shapiro notes modern courts arose they encountered a fundamental problem:

no consent. how do we make losing party lose peacefully?

how do modern courts ensure that losing party will accept the ruling?

“substituting consent for office”. judge and office is presented to the powerful and noble and rep of whole state. judges have strict code of conduct, must appear impartial AT ALL TIMES. theatrical show of power (judge sits higher, wears robe, flag/seal behind them, etc.)

main goal of making losing party lose peacefully in modern courts?

minimize violence, procedure is fair, able to enforce law

advantages of using the courts for social change?

any normal person can use court system (even only 1 person, no need to organize), cheaper, clean ask— unified message, faster, clean victory, don’t need to compromise

What is the “hope” Rosenberg is talking about?

Courts are able to change society when it falls short of our constitutional guarantees

Why does Rosenberg argue that this “hope” is “hollow?”

courts don’t actually accomplish or have the power for societal change.

3 limitations that make courts unable to do social change (1)

limitations of legal precedent and rights traditions: can only advance change if there is a realistic option given previous precedent and rights traditions. (can’t just ban “Merry Christmas” for “Happy Holidays”, can’t just make that legal)

3 limitations that make courts unable to do social change (2)

lack of judicial independence from other branches: can order change, but relies on other 2 branches to carry out change

3 limitations that make courts unable to do social change (3)

Restricted ability to implement effective social policies: court can only do a handful of things, it only has a few tools.

Rosenberg’s constrained model:

3 limitations that “constrain” court’s power to effectuate social change.

Rosenberg’s dynamic model:

a perception on an unconstrained court, effectuate social change easily.

Rosenberg’s contingent model:

to create social change:

1.) Already be a strong precedent for judicial action

2.) legislature and executive must support change

3.) public must support change (and positive incentives must be offered/costs are able to be imposed/extrajudicial actors are willing to enforce)

Rosenberg Brown v. Board argument

court said desegregate schools “with all deliberate speed”, but how much time is that. they didn’t accomplish anything. 10 years later it was achieved, only because executive branch sent army and troops to march students to schools. court needs help from other branches.

what is a flypaper court?

you go to court thinking it is an easy option, but you end up getting stuck there due to how lengthy the process is. best change agents off the board because they are in court, and we can get more stuff done faster if we force the executive branch.

Critiques of Rosenberg’s claim (1)

court was never designed to make decisions on its own. the other branches check the courts so they don’t make drastic decisions, its not a flaw.

Critiques of Rosenberg’s claim (2)

his focus is too narrow, only looking at dependent variables. societal attitudes HAVE changed because of court rulings.

Are there court cases where courts imposed immediate change? how and why?

Shelly v. Kraemer, Loving v. Virginia. Court is the gatekeeper for property transfer and marriage licenses, so they were able to enact immediate change. student admissions do NOT go through the courts, so they were able to make direct change in brown v board.

what does jurisprudence mean?

philosophy/study/science of law. study of law in the world. more academic. objective, the way it is in observation.

hume’s guillotine

the idea that if you only know raw facts about something you can't make a moral decision about it. It's judging what should be based only on what is.

natural law

law based on observation of nature, the universe, certain behavior. “right reason in harmony with nature”

why might “natural law” be problematic?

people disagree about order of nature/universe all the time. (ex: animal kingdom, strong eats the weak, should WE do that??? people can justify slavery)

why do people use “god’s will” and natural law?

God ordered universe so God’s will should be followed so law should reflect order of universe. (lot’s of bias though. “God says” and its something that benefits the individual.

what is social contract theory?

philosophy that undergirds the enlightenment’s insistence on human rights

how can social contract theory and natural law intertwine?

say, you are completely free, but you com into contact with other humans. you would rather give up some of those freedoms to make a government together rather than stealing and attacking each other. the freedoms you keep are your natural/human rights.

Legal Positivism

theory of jurisprudence that law should be viewed as a science. morality and law are separate.

Why is Legal Positivism opposite of Natural Law?

it increases happiness and wealth and well-being. they don’t gaf about patterns.

Why do people believe that reason should discern the content of law?

law’s goal is to achieve greatest utility for greatest # of people, so it can be examined objectively, empirically.

what is sociological jurisprudence?

these theories examine law as social phenomenon and as a method of social control. comes from sociology.

What does it mean to say that law is a functional of social solidarity?

keeps society together. each society generates its own type of law. [type of society] = [type of law].

which theories are classical theories of jurisprudence?

natural law, legal positivism, sociological jurisprudence

What is mechanical social solidarity?

more simple. everyone does same/small # of things (farm, hunt, fight). but has very harsh repressive laws to keep people from leaving and breaking off

what is organic social solidarity?

more jobs, more complicated. everyone has their own specialty. society needs all the organs, without one, it’ll collapse. laws are less harsh, restitutive laws that organize interactions between the groups.

what are contemporary theories of jurisprudence?

economic pragmatism, feminist jurisprudence, critical legal studies (critical race theory). these theories tend to assert the law is manipulated by and reinforces oppressive political forces that institutionalize the unequal distribution of socio-economic resources

what is economic pragmatism?

flavor of legal positivism, theory stresses that efficiency within law. benefits outweigh cost. economics, utilitarian. create greatest aggregate value for city.

what is feminist jurisprudence?

study of how law perpetuates/reflects gender and s*x. inequality and/or gender and s*x bias.

what is an equality feminist?

equal rights for women, treated the same as men. most of first wave feminism.

what is difference feminism?

sometimes you shouldn’t treat men and women THE EXACT SAME. equity instead of equality.

what is a critique of difference feminism?

essentializing men and women. stereotyping.

What is dominance feminism?

women are so subordinate they have no agency and are not individuals.

What is critical legal studies + critical race theory?

theory that law is necessarily intertwined with social issues, particularly stating that the law has inherent social biases (like racial biases). reflects and perpetuates dominant racial hierarchy in a subtle way. law fundamentally represents interest of those with power (marxist).