introduction to legal studies umass amherst final

Issues in law enforcement

• Laws are not self-enforcing

• Laws are vague, sometimes deliberately, and language can be indeterminate

• Legal actors, occupying carefully structured roles, are needed to decide when and how to enforce the law

• Those actors are given discretion to make these decisions

Theories of policing

"Broken Windows" Theory

• Tolerance of disorder and minor offenses leads to more serious crime and urban decay • Restoring order will help prevent crime

• "Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it's unoccupied, perhaps become squatters or light fires inside."

Discretion

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

• Generally, but not always, subject to review by other authorities

Limitations on discretion

• Constitution and its interpretation by the Supreme Court

• Fourth Amendment (searches and seizures)

• "Fruit of the Poisonous Tree" doctrine

• Laws

• Political Interests

• Internal Police Regulations

• Liability

• Section 1983 lawsuits

Roles of police

• Patrolling

• "Restoring order and providing general assistance"

• Arrests are rare

• Criminal Investigation

• Rarely proactive, mostly reactive

• Discretionary judgments on whether to pursue a case

• Traffic control

§ 1983 Lawsuits

Two detention officers and the sheriff meet and agree to house a detainee in a cell with a known violent offender who would purposely beat the detainee on the sheriff's order.

provides a civil remedy for plaintiffs who can show that more than 2 officers conspired to deprive them of their civil rights.

(1961) = First important case

- No warrant search

-Post Civil War

police officers broke into Monroe's home in the early morning, routed Monroe, his wife from bed and made them stand naked in the living room. The officers ruined home, searched of evidence of a recent murder. found nothing. The officers did not have a warrant for search or arrest. Monroe was taken into custody and was interrogated for ten hours without access to a telephone, attorney, or magistrate. He was later released without charges.

The plaintiffs sued the police officers and the city of Chicago in federal district court for damages arising from a violation of their Fourteenth Amendment rights under R.S. § 1979 (later codified as 42 U.S.C. § 1983), derived from § 1 of the "Ku Klux Act" of April 20, 1871. That statute provides a remedy for parties deprived of constitutional rights by an official's abuse of his position under color of any statute, ordinance, regulation, custom, or usage of any State or Territory

You should be able to explain your opinion about whether police have too much or too little discretion and influences and limitations on discretion.

• Society/government give police:

• Ability to use discretion while on duty

• Ability to use force in performing duties if necessary and under clearly established rules

• Sovereign immunity—ability to not be sued by citizens for (civil) damages if they err while doing their job

• Police do not have immunity from criminal prosecution • BUT, it is very rare for something done in the line of duty

• Action must be exceptionally egregious and/or happen multiple times

POLICE HAVE TOO MUCH DISCRETION (describe why)

You should be able to provide examples of common qualifications for being a police officer.

Required:

• Ability to pass qualification exam, physical fitness exam, background check, psychological exam, drug screening

• U.S. Citizen

• Never convicted of a felony

• Non-smoking (no use of tobacco products)

• High School graduate or equivalent

• Possession of/or ability to obtain and maintain a Massachusetts Drivers License

• Possession of/or ability to obtain and maintain License to Carry Firearm Class A

• Reside within 15 miles of the geographic limits of the Town of Amherst 1 year after appointment

• According to Massachusetts General Law, candidates accepted into a Massachusetts Police Academy must be at least 21 years of age.

Desired:

• Higher education degree in Criminal Justice

• Bilingual

Theories of punishment

• Retribution

• Punishment for the act that has been committed

• (Supposedly) 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 the law because they fear the consequences

• May include shaming as part of punishment

• Rehabilitation

• Makes violator into a productive member of the community

Problems with mandatory minimums

• Tend to weed out low-level traffickers because they focus on weight

• "Filler" materials, such as acetaminophen or blotter paper, are included when calculating drug weight

• Disproportionately affect minorities, particularly black men

• Do not allow judges to consider mitigating factors that would normally result in a lesser sentence

• They have caused the prison population to skyrocket

Mandatory minimums

• Mandatory minimum sentencing laws require binding prison terms of a particular length for people convicted of certain federal and state crimes

• Takes discretion away from judges and gives it to prosecutors, who make charging decisions

• Prosecutors will often assess a "trial tax" in order to pressure a defendant into pleading guilty and accepting a lesser penalty

Mandatory minimum reforms

• United States v. Booker (2005) - the Supreme Court determined that the U.S. Sentencing Guidelines are advisory

• Many states have passed legislation making those sentenced to mandatory minimums eligible for parole before they have served their entire sentence

• Legislation has been introduced to end federal mandatory minimums by a bipartisan group of senators, but has not been passed

You should be able to explain the positives and negatives of deterrence theory and under what conditions it is most effective.

Negatives:

• People are not always rational actors

• People don't always know what the law is

• Prison is not a deterrent, not stigmatized

• High level of alcohol/drug use at time crime is committed

• Laws aren't always implemented as written

• Chances of arrest and punishment for serious crime are low

positives:

• Assumes people are rational actors, weighing costs and benefits of their actions before acting

• Who will be deterred?

• Specific deterrence

• General deterrence

• Power of deterrence depends on the person, the circumstances and the certainty, speed and severity of the punishment

Most effective when:

people have a Low Commitment to Crime

Rationalization

For an individual:

• Methodical style of life

• Means-ends calculations to get to ultimate goal

• Base our calculations on the predicted behavior of others

• Example: education

For society:

• Institutions governed by formal rules

• Application of those rules leads to greater efficiency in pursuing the institution's goals

• Example: factory work

Trial by ordeal

a primitive method of determining a person's guilt or innocence by subjecting the accused person to dangerous or painful tests believed to be under divine control

- trial by fire

- trial by water

Rational legal systems

• Means for settling disputes defined by rules

• Rules are arranged to form a "logically clear, internally consistent, gapless system"

• Rules are general and abstract rather than mired in particular facts

• Decisions are "controlled by the intellect"

irrational legal systems

• Disputes are settled arbitrarily

• Multiple, different rules can govern a particular case

• Rules are bogged down in particulars, making them seem arbitrary

• Decisions arrived at by use of magic, oracles, dice, revelation, intuition

Arbitration

• Mandatory binding arbitration clauses in contracts between corporations and employees and/or customers

• Disputes are settled by an arbitrator chosen by the corporation

• Decisions are private, may be confidential

• Studies suggest that consumers lose their claims 94% of the time

Formal and substantive irrationality

Prophetic revelations, trial by ordeal, oracles Judgment based on personal opinions of judge

Plea bargaining

A bargain struck between the defendant's lawyer and the prosecutor to the effect that the defendant will plead guilty to a lesser crime (or fewer crimes) in exchange for the state's promise not to prosecute the defendant for a more serious (or additional) crime.

• Plea bargains:

• Can plead to lesser charge or plead to the charge with guarantee of prosecutorial leniency

• Negotiated between prosecutor and defense attorney • Must be approved by a judge

• 90-95% of criminal convictions come out of plea bargains (state and federal cases)

• Mandatory sentences make defendants more likely to plead

Formal and substantive rationality

Law is based on logically clear, internally consistent rules, decisions reached through deductive process Law systematically oriented towards non-legal norms (religion, ethical)

The end of law (Perschbacker and Bassett)

Base Kelo v. New London (2005)

Eminent domain:

• The government's power to take private property for public use for fair compensation

• Contained in 5th Amendment to US Constitution

• The question before the Supreme Court:

• Does a city violate the Fifth Amendment if it takes private property and sells it for private development, with the hopes the development will help the city's bad economy?

Relations of production

Then you have the proliterate: those that will transfer these materials into energy.Workers don't own the raw materials they're working on, the bourgeois do and they have more wealth than the proletariat

Freedom to contract: selling labor to someone in the bourgeois class. They have diff incentives: profit so they pay you less; the more you pay people the less you get. Unequal relationship

One-shotters

individuals who file one case and care more about a remedy

Forces of production

One part of the modes of production; the technological and productive capacity of any society at a given point in time -- All of the tech and raw material needed to produce something. Who owns the capital? The borgeiouse. A small group of people that own the capital (land that has oil on it) and have the power to convert raw materials into energy.

Repeat players

Repeat players are businesses or organizations with resources to pursue long term interests. They have experience in court and are more likely to win

Repeat players are more likely to litigate cases they think will give them a favorable precedent.

Superstructure

something built on top of something else; law, the state, culture, religion, ideology. Allows the system to look the other the way and it leads to ECONOMIC INEQUALITY. Legal system allows this to operate and continue

You should be able to explain the Kelo decision and its backlash.

• More than 40 states have passed either constitutional amendments or statutes that reformed their eminent domain laws to better protect private property rights

• Nine state high courts restricted the use of eminent domain for private development

• 2010 Associated Press poll:

• 87% said government shouldn't have the power of eminent domain for redevelopment

• 75% opposed government taking private property and handing it over to a developer

You should be able to explain why repeat players tend to be advantaged in the legal system.

• Often engaged in similar litigation

• Stakes in any specific case small

• Resources to pursue long-term interests

• Consequence: tendency to play for the rules

Collective conscience

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

• Social morality is encoded in a society's collective conscience.

• The collective conscience is sacred and not observable. It is expressed in law, which can be observed and measured.

Salem Witch Trials

Several accusations of witchcraft led to sensational trials in Salem, Massachusetts at which Cotton Mather presided as the chief judge. 18 people were hanged as witches. Afterwards, most of the people involved admitted that the trials and executions had been a terrible mistake.

The collective conscience had been weakened

over the course of the 17th century by...

• Political Changes

• Economic Changes

• Religious Changes

• Environmental Changes

Repressive law

goal is punishment

Pre-modern executions

• Dramatic, Ritualistic, Sacred

• Public

• Showcased the body of the condemned

• Moral Modern Executions

• Rationalized

• Private •

Minimized the significance of the body of the condemned

• Amoral

modern executions

Premodern Executions

• Dramatic, Ritualistic, Sacred

• Public

• Showcased the body of the condemned

• Moral Modern Executions

• Rationalized

• Private

• Minimized the significance of the body of the condemned

• Amoral

Restitutive law

Durkheim's view that law resolves conflicts between equals, as in commutative justice

Rationalized executions

• Goals:

• End life as quickly as possible

• Minimize resistance

• Little to no display of emotion

• To do this, changes have been made in:

• Method of execution

• Location of execution

• Length of time required for execution

• Procedures followed during the execution

Last words/meals (Durkheim's interpretation)

Inmates' last words and last meal requests have allowed executions to maintain their character as events that reinforce our collective conscience and its belief that individuals are responsible for their behavior.

Theory of crime and punishment

• Crime is normal; societies cannot function without it.

• Crime elicits a punitive response, and punishment is a mechanism for showing the collective conscience still exists and maintaining social solidarity.

• Punishment is expressive and ritualistic. It has to be observed by members of a society in order to fulfill its function.

Critical race theory

American law has been structured to promote the interests of whites, especially white males

• Racial distinctions are based, not on real differences between people, but on social construction of these differences

• Examples

• Slavery

• Jim Crow laws

• Others?

Bradwell v. Illinois (1873)

Upheld law prohibiting women from practicing law

Critical feminist theory

• Not a unified school of thought

• Distinctions between schools of feminist legal theory make it difficult to find solutions to gender bias

• Focuses on looking for gender disparities when they may not exist

• May elevate women's interests above men's, resulting in a different type of gender bias

Craig v. Boren (1976)

Can't let women drink 3.2 beer, but not men simply based on gender

Protectionism

The belief that women should be spared from life's cruelties

You should be able to explain the key perspectives of critical legal studies.

• Critical Race Theory

• Feminist Legal Theory

You should be able to explain critiques of critical race theory and critical feminist theory.

• Focuses on narratives and anecdotes instead of the systematic analysis of the legal system

• Focuses on looking for racial disparities when they may not exist

• Critical race theorists often focus on exposing racial bias, rather than remedying it

• Many leaders of the civil rights movement were white males

Legal instrumentalism

utilitarianism: law should maximize "greater good for the greatest number", maximize pleasure, minimize pain--legal instrumentalism: law should be designed to achieve specific goals and purposes (common good)

Influencing judicial selection

• Federal

• Lobby senators to support or oppose nominees

• Testify before the Senate Judiciary Committee

• State

• Donate money to judge's campaigns (if elected)

• Run ads for or against judge's election

Test cases Mapp v. Ohio (1961)

• Applied the exclusionary rule to state prosecutions

• Exclusionary Rule: the principle that evidence gathered illegally may not be admitted into court

• The American Civil Liberties Union, as an amicus, was the only entity to bring up the exclusionary rule issue in the case

Amicus curiae briefs

• Literally, "Friend of the Court"

• Legal briefs filed by non-parties to a case who believe the outcome will affect them

• The primary means by which interest groups lobby the courts

• Take a position as to the outcome of the case

• Relatively inexpensive, but does not allow the group to control all aspects of the litigation

• Interpretations of precedent, statutes, and constitutional law

• Broader implications of a decision

• Preferences of other actors

• Social scientific information

You should be able to explain why interest groups use the legal system and the methods they use to try to influence the legal system.

• Political Disadvantage

• Possibility of Long Lasting Influence

• Protect Gains Won in Other Venues

• Counterbalance Opposition

• Unique Characteristic of the Group

use:

• Test Cases

• Amicus Curiae Briefs

• Influencing Judicial Selection

• Other Mechanisms

Dynamic court

Courts are vigorous and effective proponents of change

constrained court

Courts are unable to produce, on their own, social changes

Brown v. Board of Education II (1955)

• Having declared the "separate but equal" doctrine unconstitutional, the next step was to determine how the decision should be implemented

Primary responsibility given to local school districts • Oversight authority given to federal district courts • Timeline: "all deliberate speed"

Plessy v. Ferguson (1896)

• Supreme Court upheld state-imposed racial segregation (establishing the doctrine of separate but equal)

Plessy devastated the black community by legitimizing segregation in the public sector

• Plessy was felt most strongly in education

NAACP

Plessy devastated the black community by legitimizing segregation in the public sector

• Plessy was felt most strongly in education

LDF

• NAACP LDF sponsored case, argued by Thurgood Marshal, who would later be the first African American Supreme Court Justice

• Arguments rested in social scientific research that segregation detrimentally effects minority children because they begin to see themselves as inferior (doll study)

Mendez v. Westminster (1947)

Ruling that separate was not equal, Mexican American children could attend public schools.

Civil Rights Act of 1964

1964; banned discrimination in public accommodations, prohibited discrimination in any federally assisted program, outlawed discrimination in most employment; enlarged federal powers to protect voting rights and to speed school desegregation; this and the voting rights act helped to give African-Americans equality on paper, and more federally-protected power so that social equality was a more realistic goal

Brown v. Board of Education I (1954)

• The Brown decision is actually the decision for four cases combined:

• Davis v. County School Board of Prince Edward County (VA)

• Gebhart v. Belton (DE)

• Briggs et al, v. Elliot (SC)

• Brown v. Board of Education of Topeka, Kansas

The legal question:

• Does the segregation of children in public schools solely on the basis of race deprive minority children of the equal protection of the laws guaranteed by the 14th Amendment?

• NAACP LDF sponsored case, argued by Thurgood Marshal, who would later be the first African

American Supreme Court Justice

• Arguments rested in social scientific research that segregation detrimentally affects minority children because they begin to see themselves as inferior (doll study)

• Decision (unanimous) May 1954

• Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality

• Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority

Affirmative action

• Multiple SC cases establish that race can sometimes be used in college admissions IF it is part of individualized consideration of students

• For a state policy or law to use race in a constitutionally legitimate way, SC requires:

• Compelling state interest

• Law or policy is narrowly tailored to achieve that interest

• Law or policy must be the least restrictive means to achieve that interest

• This test is called "strict scrutiny"

1955-1960:

Federal courts hold over 200 school integration hearings

• School districts remain under court supervision until they are declared "unitary"

• According to Supreme Court, districts have an "affirmative duty" to eliminate the "vestiges" of segregation, "root and branch"

• There are still hundreds of school districts under court supervision

De jure vs. de facto segregation

• De jure segregation is LEGALLY mandated segregation

• De facto segregation is NON-LEGALLY mandated segregation

Strict scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal

You should be able to explain the legal strategy that led to Brown v. Board of Education I and II and how this was similar and different from the legal strategy regarding same-sex marriage.

similar:

different:

- a key difference is where the cases were heard. in brown, the strategy focused on using federal courts to build precedents. with regard to gay marriage, the focus was on state courts. one key theme is dynamic v. constrained courts and whether the courts are effective in bringing about social change. i.e rosenberg hollow hope which argued that even without brown, schools would have become desegregated and thus the courts are neither necessary nor sufficient for bringing about social change. after brown, desegregation remained the same. however after the civil rights act of 1974, desegregation rose at a tremendous rate. this is the constrained court perspective.

Backlash thesis

Court decisions can have negative effects for a social movement

Defense of Marriage Act (1996)

• Declared that states are not obligated to recognize any same-sex marriages that might be legally sanctioned in other states

• Defined marriage in heterosexual terms for federal law (this provision has since been ruled unconstitutional) • As a result, LGBT interest groups focused on state courts in hopes of achieving marriage equality in the 1990s to 2000s

Bowers v. Hardwick (1986)

no constitutional right to engage in same-sex sodomy

Goodridge v. Department of Public Health (2003)

Massachusetts Supreme Judicial Court ruled that the state may not deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry

• The state legislature failed to pass legislation reacting to the decision and same-sex marriage was legalized for the first time

• Backlash: Constitutional bans on same-sex marriage in 16 states

Obergefell v. Hodges (2015)

• Two Questions • 1) whether the Constitution requires states to issue marriage licenses to same-sex couples • 2) whether states must recognize same-sex marriages performed in other states where they are legal • In United States v. Windsor (2013), the U.S. Supreme Court struck down part of the Defense of Marriage Act by a 5-4 vote

You should be able to explain the backlash thesis and provide specific examples involving LGBT rights.

• Government officials in several states refuse to grant same-sex couples marriage licenses, but eventually come in line with the ruling

• Kim Davis in Kentucky

• Roy Moore in Alabama

• Some states introduced or passed anti-LGBT laws

• North Carolina "Bathroom Bill" (requiring public schoolchildren to use facilities that match the sex they were assigned at birth)

You should be able to explain why interest groups used the state court system to fight for marriage equality.

You should be able to compare and contrast the legal strategy used to promote the legality of same-sex marriage with the legal strategy used to end school segregation.

You should be able to explain the legal arguments for and against same-sex marriage that were made in Obergefell

For:

• The Fourteenth Amendment provides same-sex couples an equal right to enter into the longstanding institution of marriage, with access to that institution being a "fundamental right"

• They are not asking the Court to identify a constitutional right to same-sex marriage • If a state does not have a good reason for excluding gays and lesbians from equal rights or benefits, a state will be understood to have engaged in a form of "animus" or disapproval, based solely on the gender identity of homosexual persons

• There is a "long-standing tradition" among the states of recognizing marriages based upon what the law is in the state where the marriage was performed, rather than on the law of a state to which a married couple may move

• A failure to follow that tradition "imposes a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriage" that has been made legal by another state

Against:

• The Constitution's Fourteenth Amendment does not settle the definition of marriage, so that definition is left to the states

• The people of the states are engaging in a robust debate about the issue, so the Court should not step in and give marriage a uniform national definition, abruptly ending that debate

• What is at stake in these cases is nothing less than the right of self-government in the political communities of the several states, exercising sovereign powers

• State bans, either on marriage or recognition, were not passed to engage in discrimination, but simply to codify the traditional notion that marriage should be restricted to opposite-sex couples

• States are entitled to define marriage in that traditional way, to promote child-bearing within a natural biological partnership. Same-sex couples can be excluded from marriage because they are not similarly capable of procreation as a couple

• The Court should treat the pleas of same-sex couples as a request to create a new constitutional right to marry a same-sex partner, and there is no history justifying any such right

• There is no basis for imposing on states a more rigorous test of the constitutionality of their marriage laws. They need only have a rational public policy behind them, and promoting procreation is such a policy, as is preserving traditional marriage

decision:

• The Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, which applies to same-sex couples and opposite-sex couples

• The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law

• States must recognize same-sex marriages performed in other states

Syndi-court

• Syndicated televised "courtroom" proceedings

• Really a form of arbitration

• Judges are not bound by legal rules of procedure, evidence, or decorum

• This has the potential to distort how they view the legal system

• Syndi-courts misrepresent judges and courtroom

procedure

• Syndi-courts alter expectations about the legal

system

• Syndi-courts may provide a model for litigant

behavior

• encourage people to take cases to court, promising

glamour

• encourage people to represent themselves pro se

"Tipper" Stickers

The Parental Advisory label (abbreviated PAL) is a warning label introduced by the Recording Industry Association of America (RIAA) in 1985 and adopted by the British Phonographic Industry (BPI) in 2011. It is placed on audio recordings in recognition of profanity or inappropriate references, with the intention of alerting parents of material potentially unsuitable for children.

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider

syndi-courts are a form of arbitration

Parents Music Resource Center

- Parents concerned about the lyrics their children were listening to

- Didn't advocate censorship, simply wanted to inform of lyrical content

• No actual legislation passed

- Recording Industry Association of America voluntarily agreed to label music

This brought about the Parents Advisory Explicit Lyrics Label. Which back fired and sales went up.

You should be able to explain the differences between syndi-court viewers and non-viewers in terms of their impressions of the American legal system.

• "Jurors will look for clues to judge's opinion"

• Frequent Viewers - 75% yes

• Non-viewers - 32% yes

• "Judge's silence indicates belief in litigant"

• Frequent Viewers - 74% yes

• Non-viewers - 13% yes

• "Judges should be aggressive with litigants or express displeasure with their testimony"

• Frequent Viewers - 64% yes

• Non-viewers - 26% yes

You should be able to explain the events that lead to the introduction of parental advisory labels on music albums.