Legal Systems

epistemology

“how we know what we know”

epistemological crisis

the inability to differ between myth and reality

Ex. The Big Lie-

types of social science research

theoretical- based on logic and reasoning

empirical- based on data and replicability

normative- based on values determining how things SHOULD be

myth vs. reality

seeks to explain the difference between widely accepted beliefs about the legal system and what actually occurs

Ex.

• the CSI effect

• Within Appellate courts

• the judicial process IS political

• perry mason syndrome

The CSI effect

Effect on:

Jury- defendants believe that jurors are more likely to convict in light of forensic evidence, while prosecutors believe jurors are more likely to wrongly acquit when no forensic evidence is present

Lawyers and Judges- may believe that either defendants and prosecutors are disadvantaged so make adjustments in the court hearing

Students- more interest in studying forensic science

types of evidence

not only forensic evidence matters- theres physical, circumstantial, and testimonial evidence that can be used to decide a cas

cognitive bias

the resistane to understanding new ideas and perspectives because they conflict with your own pre-existing ideas

Sources of Law (Hierarchy: 1,2,3,4,5)

1. constitutions (state and federal)

2. Statutes from legislative bodies

3. regulatory agencies

4. executive orders

5. common law

positive law

man made law

natural law

divine law; reflects a natural sense of right and wrong

judicial review

the authority of courts to examine actions of the executive and legislative branches and to invalidate those actions if they are contrary to constitutional principles

private attorney general

private entities enforce public laws

types of legal systems

common law system- based on the precedent of previous judicial decisions

civil law system- based on a fixed body of written law

religious law systems- based on religious text

customary law systems- based on oral law passed down over time

mixed systems

adversarial legalism

a type of legal system in which conflicts are resolved through fights between parties and lawyers in courts- as opposed to judge dominated court hearings in the inquisitorial model

Other methods of dispute resolution:

1. bureaucratic legalism- highly procedural and led by a central official

2. mediation/negotiation- more informal and participatory

3. expert judgment- less formal, where one central official makes judgement calls

Formula for Adversarial Legalism (Causes & effects)

Total justice + Fragmented Government = Adversarial Legalism

• caused by American mistrust and individualism

• lack of alternative systems through which to advance policy and social goals

• federalism (led to fragmentation)

• very costly

• uncoordinated

judicialization of politics

the growing influence and reach of courts, judges, and lawyers, into the political process at the expense of politicians

ex.

• judicial review

• interest groups like the NAACP in Brown v. Board of education using courts instead of legislatures to make change

forum shopping

a political/strategic ability of lawyers to choose where they have their cases heard in the the courts that they believe are most likely to provide favorable judgement

ex.

• marshall, texas is a very popular court to take patent cases because lawyers believe they are more likely to win there

habeas corpus

the right to challenge a criminal conviction

total justice

the notion that because advanced societies have greater capacities, they ought to use their resources to remedy social problems through PREVENTION not just reaction

process of apellate courts

1. writ of certiorari

2. written briefs (amicus, brandiese)

3. oral arguments

4. written decision (affirm, reverse, remand)

en banc

an entire rehearing by panel

circuit splits

one circuit rules differently than another circuit on the same issue

legal formalism

the belief that judicial behavior is based on the obligation to only make legal arguments with previous cases through texts, precedents, and historical opinions

legal realism

the belief that more than just the law shapes judicial behavior; the attitudinal model, the strategic model, and individual values shape decisions

stare decisis

“let the decision stand”; the precedent by which judges determine future cases (can be horizontal or vertical)