CJ 301 SDSU Mobley Midterm

Classic Legal Theory (Formalism)

largely sees law as a closed system; law resides in books, jurists make decisions based on legal principles

Legal principles are human creations, posited on experience

Doctrine of discovery formed in theological imagination of western imperialist culture... unpack it

-origniated from religious and cultural mindset of european colonial powers

-theological beliefs: how religious beliefs were intertwined with imperialist ambitions

Jurisprudence vs "sociology of law":

jurisprudence: study of law itself

inside the box, how to interpret the law in books

Sociology of law: relationships between society and law, "the in between"

law in action, who are the actors and what do they act upon

Classical Training

Judges derive specific case decisions based on general principles.

Legal Reasoning

finding the right legal principles, then using the principle to guide a particular decision

Formalist theory

law is rationally determinate

adjucation is autonomous from other ckinds of reasoning>judge can reach decision w/o resorting to non-legal normative of morality or politcal philosophy

Formalism is determinate, autonomous and offers the possibility of certainty

Roscoe Pound

Sociological Jurisprudence:

argued law should be evaluated based on the result it achieves rather than based on the logical consistency of legal rules

law should be made to make people's live's happier and easier

rejected notion of law as a slot machine in relation to judge pulling logical consistent decisions from one

Pragmatism:

law is always shaped by human interests and should be reconciled to the public interest

Influences on legal realism

durring 1920s-1930s

Lochner v NY reaction, industrialization, great depression, stock market crash, emergence of new deal, Russian revolution, rise of communism and fascism in europe

Doctrine of discovery origins

-emerged from a series of 15th-century papal bulls which are official decrees by the pope that carry the full weight of his ecclesial office,

-church and state were not separate, so advancement in one was advancement in other

-Dum Diversas in 1452 issued by Pope Nicholas V (granted King Alfonso of Portugal to invade and capture Muslims) used words Saracens and pagans which means those who could be targeted for perpetual slavery, they were non-christian

-Romanus Pontifex 1454 Pope Nicholas: also for portugal, allowed European Catholic nations to expand their dominion over "discovered land" such as Africa, gave rights to slaves

-Inter Caetera 1493 Pope Alexander ( year after Columbus): for ferdinand and isabella, pop offered spiritual validation for european conquest, reinforced columbus trip

Mersheim article (Ukrain war)

-US and NATO played crucial role in events that led to Ukraine war (wests fault)

-brining Ukraine into NATO causes problem

-conventional wisdom plays role bc west believes putin is directly respnsible

How is the Ukraine war comparable to the Vietnam and Irag wars?

-Due to US involvement and NATO allies, playing crucial role leading up to the conflict

What are the two main arguments about Ukraine war:

1. us primarily at fault for the war

2. The Biden admin reacted by doubling down on russia

What triggered russia's invasion of Ukraine and is considered real cause of the crisis?

-Russia invaded after the Biden Admin attempted to bring Ukraine into NATO which Putin saw as threat

-NATO membership for Ukraine is viewed as huge threat to Russia

What is the conventional wisdom in the west regarding the Ukraine war?

-West believes Putin is solely responsible for the Ukraine war due to his imperial ambitions

What is the claim about Putin's ambitions and how does it lack evidence?

There is virtually no evidence supporting the rumor that Putin aims to conquer all of Ukraine and other territories, it was more of reaction to US not imperialism

He wanted to ensure Ukraine did not become a springboard for Western aggression against Russia

What are the broader consequences that the Ukraine war has led to?

-The war has damaged relations between russia and the west, fueling global instability and possibly leading to a global food crisis

realist opinion on Ukrain war:

-Russia was pushed into alliance with china

-russia had escalatory dominance and russia will win and limits of american power revealed

What is the doctrine of discovery?

A series of 15th century papal decrees that justified the colonization and exploitation of non christian lands, leading to the systematic oppression of Indigenous people

Who is the author of Unsettling truths and the speaker of Race, Trauma and Doctrine of discovery?

Mark Charles, Navajo native american

What is the impact of the doctrine of discovery on Native Americans

The doctrine perpetuated racial trauma, loss of land, culture and identity contributing to ongoing marginalization and inequality for native peoples

What is jurisprudence?

The study of law itself, focusing on how to interpret the law in books (inside-the-box analysis)

What is the sociology of law?

The study of relationships between law and society, focusing on how law operates in action and how these relationships change over time

What is a state according to Hobbes?

A group that possesses territory and claims sovereignty, governed by a system that enforces rules in exchange for peace and security (social contract)

What is the doctrine of discovery (presentation)?

Formed from Western imperialist theology, it justified the dehumanization of non-Europeans, legitimizing the slave trade, resource extraction and global colonization

Charles and Rah and Dehumanization:

-foundational tactic to promote and maintain elite status of landowning men

-Women irrational, non landowning are white trash, non whites are savages and all are less than fully human

How did the doctrine of discovery impact the US legal system?

It justified colonization and dehumanization, shaping the legal and political foundations of American society, especially through Supreme Court rulings like Johnson v. Mc'intosh

Johnson v. McIntosh

Established that Indian tribes had rights to tribal lands that preceded all other American law; only the federal government could take land from the tribes.

What is the primary tactic used to maintain elite status according to Charles and Rah?

Dehumanization, which is used to elevate White male landowners over non-Whites, women and non landowning white men

How does Charles and Rah describe the phrase "All Men Are Created Equal"?

They argue the US Constitution was obsessed with hierarchy and discrimination, leaving out women and dehumanizing Black people and Indigenous groups

How does the 13th amendment preserve a form of slavery?

While abolishing chattel slavery, it codified penal slavery, which allowed race-based subjugation to continue through mass incarceration

What does Richard Wolff say about the decline of the American Empire?

He argues the U.S. is in irreversible decline, with its leaders unable to acknowledge the reality, leading to instability and potential unrest.

What are papal bulls and how did they contribute to the doctrine of discovery?

Papal bulls are official decrees from the Pope. Key bulls like Dum Diversas (1452) and Inter Caetera (1493) justified European powers' colonization of non-Christian lands, setting the foundation for the doctrine of discovery

What were the main goals of the European powers under the Doctrine of Discovery?

The doctrine allowed european powers to claim lands inhabited by non-christians, enslave Indigenous people, extract sources and expand their empire

How did the doctrine dehumanize non-europeans?

it categorized Indigenous people as less than human, justifying their exploitation and subjugation by Christian Europeans

How does Charles & Rah connect the Doctrine of Discovery to modern American exceptionalism?

They argue that American exceptionalism is rooted in the same theological and racial ideologies that justified the Doctrine, perpetuating white supremacy and a false narrative of divine American superiority

What is formal law, and what are its key components?

Formal law includes rules governing a state:

-systems for enforcing and changing rules

-System for admin procedures -Sanctions for rule violators.

-It is the structure of legal systems

What is the "law in action" as opposed to the "law in books"?

"Law in action" refers to how law operates in society, focusing on relationships and their practical effects, while "law in books" focuses on the written statutes themselves

What was Lincoln's complex legacy regarding slavery?

Lincoln is viewed as both a liberator and a preserver of White supremacy. While abolishing chattel slavery, he supported penal slavery and restricted Black civil rights​

Who was the most racist president according to charles and rah?

Lincoln, he himself was, but also the consequences of his policies

1. Genocidal warrior against Natives, US Dakota War of of 1862 38 Natives hanged

2. He said if he could end the war without freeing slaves he would, emancipation was politically motivated

3. He favored whites in hierarchy bc there are physical differences

4.He supported colonization and doctrine

5.He left a legacy of racial inequality that perpetuated racial caste system

6. did not abolish slavery, still codifying penal slavery

7. sought to permanently exclude blacks from legal life like voting, serving on juries

Core issues of theological imagination and diseased social (doctrine and lincoln, charles and rah)

1. dehumanization: result of diseased social and theological imagination

2. discrimination: based on gender and race justified by corrupt social and theological ideologies

3. social imagination: there are categories and hierarchies of all things, deeply ingrained narratives can shape and distort perception of justice

Ideologies that justify discrimination and dehumanization through hierarchical thinking, elevating white/male supremacy as natural through mass incarceration

Richard Wolff on decline of American Empire

-US exceptionalism is a dysfunctional ideology that dehumanizes others and may lead to our own downfall

-US is in state of irreversible decline, similar to other historical empires such as the British Empire. He describes this decline as hiding in plain sight, many feel its effects but political leaders refuse to acknowledge it

-evidence: economic stagnation, growing inequality and failure of military interventions in place and economic shift in power to china and Russia

Main reasons for decline:

Wolff argues that economic stagnation, military failures, growing inequality, and shifting global power dynamics, particularly with China and BRICS nations, are driving the irreversible decline of the U.S

What role does ideology play in maintaining the illusion of U.S. strength, according to Wolff?

Wolff argues that American exceptionalism and nationalist propaganda reinforce the belief in U.S. superiority, preventing meaningful acknowledgment of its decline​

What does Wolff say about U.S. support for Israel?

Wolff critiques the U.S.'s unconditional support for Israel, suggesting it is driven more by ideological narratives than practical or diplomatic interests​

comparing us and britain in decline:

Britain: went to war with north colonies and lost, the again in 1812 and lost, accepted compromise only after being defeated

US: Vietnam war, lost, iraq war lost, afghan war lost, economic sanctions to defeat russia and leaders were wrong, war lost

Social Contract

individuals surrender personal freedoms in exchange for security provided by the state

in modern day times, citizens are expected to participate in public safety alongside the formal justice system

How has the U.S. criminal justice system failed in its social contract obligation?

Through mass incarceration, disrupts social networks and inhibits communities' ability to participate in public safety, breaching the social contract

It reduced collective efficacy and prevents communities from exerting social control

Community justice (Community justice and public safety through lens of social contract article)

- In earlier frameworks, community justice involved residents working with institutions to enhance public safety.

Involved problem solving, decentralization of authority, restorative justice, and place-based community involvement

Four key elements of traditional justice models?

1. Place-based community involvement, 2. problem-solving approaches 3. decentralization 4. restorative justice

What is the critique of the social contract by Pekka Sulkunen and how can it be improved?

-It is an illusion that hides relations of domination, particularly under advanced capitalism making true reciprocity between citizens and state impossible

Advocate for better collaboration between communities and the justice system to ensure both fulfill their obligations under the social contract, leading to enhanced public safety

Coercive Mobility Theory

Removal of individuals (through incarceration) can destabilize communities, disrupt social networks, and paradoxically lead to higher crime rates

Social disorganization theory and how it explains crime in disadvantaged neighborhoods:

a theory that asserts crime occurs in communities with weak social ties and the absence of social control communities with strong collective efficacy are more resilient

State failures and the "three-strikes" law

-designed to incarcerate dangerous offenders for long periods, but they have been criticized for failing to reduce crime, has increased prison population without delivering public safety

-over-reliance on incarceration

How has mass incarceration contributed to the breach of the social contract?

Studies found when incarceration rates in a neighborhood reach a "tipping point" it leads to high disruption of family life, social cohesion and local economies

it weakens their ability to enforce efficacy or social control

What is the "tipping point" in coercive mobility theory?

Occurs when incarceration rates in a community reach a level where further increases in incarceration lead to more crime rather than reducing it

What is the central argument of Michelle Alexander's The New Jim Crow?

-mass incarceration is the latest system of racial control, following slavery and Jim Crow. It disproportionately targets

How did the War on Drugs contribute to mass incarceration?

Disproportionately targeted Black and Latino communities resulting in skyrocketing rates despite similar rates of drug use among whites (racial control mechanism)

Stage theory offered by Alexander, like Darwin, Marx, Maine and others:

Racial control, slavery, jim crow era of segregation and terror, mass incarceration

Bacon's rebellion and how it ties in (1675)

The goal originally was to split bonded whites from blacks and make blacks inferior and use as justification

white bondsmen who had wanted to revolt with slaves were then elevated in the social hierarchy, beginnings of white privilege

Key legal cases: civil society

Dred Scott 1857: persons of african ancestry have no standing to bring a suit bc not citizens

Plessy v Ferguson (1896): separate but equal facilities are appropriate

Brown v Board of Ed (1954): separate facilities are inherently harmful, reversed earlier ruling

What led to the demise of Jim Crow?

world war II, mass migration from south, brown v board, civil rights movement and protests

New Jim Crow policies

-tough on crime policies, war on drugs, stop and frisk, three-strikes law,

-selective enforcement became new means of racial control

Terry v. Ohio (1968)

Supreme Court decision endorsing police officers' authority to stop and frisk suspects on the streets when there is reasonable suspicion that they are armed and involved in criminal activity, limits fourth amendment

McCleskey v. Kemp (1987) and its significance in the context of racial discrimination:

McCleskey presented a groundbreaking empirical study that showed people accused of killing white victims 4.3 times more likely to be sentenced to death than those accused of killing black victims, court ruled that evidence was insufficient

Essentially racial bias would be tolerated, virtually to any degree so long as no one admitted, impossible to meet high standard for cases, has never been done and has never been proven racism

What does the term "perpetual subservience" refer to in the context of mass incarceration?

Lifelong discrimination faced by formerly incarcerated individuals, as they are denied rights such as voting, employment and housing. it ensures marginalization and the maintenance of racial underclass (new form of racism)

How did the rise of mass incarceration compare to earlier systems of racial contro

l, ensuring the Black Americans remain marginalized through criminal justice policies that disproportionately target them

What is colorblind racism and how does it perpetuate mass incarceration?

Colorblind racism is the belief that racial inequality no longer exists which makes the ongoing systemic racism in the criminal justice system, it allows racially biased policies like mass incarceration

What is the definition of Rules-Based International order:

RBO is a system of governance, typically on an international level, founded on rules, norms, and principles that guide the behavior of states and other international actors

often includes hard laws and soft laws like standards from non-state actors and international organizations

How does RBO differ from international law?

International law is a formal legal framework based on treaties and legal principles that are binding and accepted globally

RBO is more flexible, emphasizing political interests and undefined values, allowing for exceptions and reinterpretations based on the national interests of powerful countries, particularly the US

Why does the US prefer RBO over international law:

It provides more flexibility to pursue its national interests, avoids participation in key multilateral treaties and allows for controversial interpretations of international law, such as preemptive self-defense.

It also uses RBO to justify exceptionalism, especially regarding Israel

Often see international law as inadequate to pursue its interests, preferring RBO to allow for reinterpretations, it avoids participation in key treaties and challenges interpretations

How does US exceptionalism manifest in relation to Israel?

The US often avoids holding Israel accountable for violations of international law and instead relies on RBO principles to justify controversial actions like the annexation of East Jerusalem

How do Russia and China critique the RBO?

-Russia views it as Western tool used to assert dominance and selectively target states like Russia.

-China argues international law should be based on universally agreed upon international law rather than a system dictated by a few powerful states

Greenwald's yale talk: "liberty for all, justice for some":

-Main argument: US has developed two-tiered justice system where elites and private sectors are not held accountable

he illustrates the immunity of elites through the lack of prosecution for wall street executives after the 2008 financial crisis

What is multilateralism in international trade?

-Refers to cooperation among multiple countries in trade agreements and negotiations, typically through organizations like World Trade Organization

promotes global trade liberalization and collective economic interests

What is whataboutism? and how is it used in the context of RBO?

-Technique used by Russia to deflect criticism by pointing to Western violations of international norms such as US actions in Iraq or Libya

-uses to challenge validity of RBO

Who is Edward Snowden and what did he expose about the US security state?

-Former NSA contractor who became whistle blower in 2013

US government was conducting mass surveillance programs, including wiretapping and data collection, without court approval, violating privacy rights and legal constraints

Who is Glenn Greenwald and what is his critique of US security state?

-American Journalist, lawyer, and author

-He argues that the US security of state operates above the law, disregarding legal constraints and accountability

4th Amendment

Freedom from unreasonable searches and seizures

5th Amendment

Criminal Proceedings; Due Process; Eminent Domain; Double Jeopardy; Protection from Self incrimination

6th Amendment

The right to a Speedy Trial by jury, representation by an attorney for an accused person

7th Amendment

Right to a trial by jury in civil cases

8th Amendment

No cruel or unusual punishment

9th Amendment

Citizens entitled to rights not listed in the Constitution

10th Amendment

Powers Reserved to the States

13th Amendment (1865)

Abolition of slavery w/o compensation for slave-owners

14th Amendment

Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws

15th Amendment (1870)

U.S. cannot prevent a person from voting because of race, color, or creed