1/80
Looks like no tags are added yet.
Name | Mastery | Learn | Test | Matching | Spaced | Call with Kai |
|---|
No analytics yet
Send a link to your students to track their progress
Microlaw — Reisman
Everyday informal rules that govern social behavior and interactions outside formal legal systems
Ex Post Facto Laws
Laws that retroactively criminalize behavior; prohibited under the Constitution
Natural Law
The theory that law is based on universal moral principles; an unjust law is not a true law
Legal Positivism
The theory that law is created by authority (government) and is separate from morality
Legal Consciousness
How individuals perceive, interpret, and interact with law in everyday life
Hegemony of Law
The idea that law shapes social norms and influences what people see as legitimate or “normal”
Autonomy of Law
The idea that law operates independently from social, political, or economic forces
Common Law
A legal system based on judicial decisions and precedent rather than statutes
Stare Decisis
The doctrine that courts should follow prior decisions; promotes consistency and stability in law
CSI Effect
The influence of crime shows on jurors’ expectations of forensic evidence
Social Contract
The idea that government authority comes from an agreement with the people, who give up some freedoms in exchange for protection
Overcriminalization (Klockars)
The excessive expansion of criminal law into everyday behavior, raising concerns about fairness and discretion
Palsgraf v. Long Island Railroad
This case established the concept of proximate cause in negligence law. Helen Palsgraf was injured when railroad guards helped a man onto a train, causing him to drop a package of fireworks that exploded and knocked over scales onto her. The legal issue was whether the railroad was liable for her injuries. The court ruled that the railroad was not liable because the harm was not reasonably foreseeable. The case is important because it limits liability to harms that are predictable and also shows how judicial reasoning can differ based on perspective, which ties into law in action and legal realism.
Riggs v. Palmer (1889)
In this case, a grandson murdered his grandfather in order to inherit under the will. The legal question was whether he could still legally receive the inheritance since the will technically allowed it. The court ruled that he could not inherit, even though no statute explicitly prevented it, because of the principle that no one should profit from their own wrongdoing. This case is important because it demonstrates Dworkin’s idea of principles over rules and shows how courts can engage in gap filling when strict application of rules would lead to unjust outcomes.
Planned Parenthood v. Casey (1992)
This case revisited Roe v. Wade and asked whether Pennsylvania abortion restrictions (such as waiting periods and spousal notification) were constitutional. The Supreme Court reaffirmed the core holding of Roe (the right to have an abortion) but replaced the trimester framework with the “undue burden” test, meaning states cannot place substantial obstacles in the path of a woman seeking an abortion. The Court emphasized stare decisis, arguing that overturning Roe would damage the Court’s legitimacy. This case is important because it shows how precedent can be modified but still preserved.
Dobbs v. Jackson Women’s Health Organization (2022)
This case challenged a Mississippi law banning most abortions after 15 weeks. The Supreme Court ruled that the Constitution does not protect a right to abortion and overturned Roe and Casey. The majority argued that such rights must be “deeply rooted in the nation’s history and tradition,” and that Roe was wrongly decided. The dissent argued that overturning precedent undermines stability and legitimacy and threatens other rights. This case is important because it highlights debates over stare decisis, judicial power, and the rule of law.
Walker v. Birmingham (1967)
Civil rights activists, including Martin Luther King Jr., were prohibited from protesting without a permit but marched anyway and were arrested. The issue was whether they could ignore the court order because it was unjust. The Supreme Court ruled that they could not violate the injunction, even if they believed it unconstitutional, and should have challenged it through legal channels. This case is important because it raises tension between rule of law and civil disobedience, showing that courts prioritize obedience to legal processes.
Trump v. United States (2024)
This case addresses whether a former president has immunity from criminal prosecution for actions taken while in office. The Supreme Court held that presidents have broad immunity for official acts, but not for unofficial conduct. The case raises major concerns about the rule of law, particularly whether powerful officials can be held accountable. It is important because it directly questions the principle that no one is above the law.
Classical Legal
Thought The belief that law is neutral, fixed, and applied logically; judges discover law rather than create it
Law is objective, neutral, and logical
Judges do not make law, they discover it
Legal reasoning is like math → apply rules → get correct answer
Focus on consistency and predictability
Legal Realism
The view that law is shaped by judges’ experiences, biases, and social context, not just logic
Law is shaped by human behavior, biases, and context
Judges are influenced by politics, class, personal beliefs
Law is often indeterminate (no single “correct” answer)
Legal reasoning is often post hoc rationalization
Internalist Approach
The view that law should be studied as an independent system (“law on the books”)
Focuses on law itself
Studies statutes, rules, and doctrine
Assumes law is autonomous
Palsgraf → internalist = focus on proximate cause rule
Externalist Approach
The view that law is shaped by social forces like politics, economics, and culture
Looks at how law is influenced by society, politics, economics
Focuses on law in action
Law is not autonomous
externalist = consider class differences between judges and jury
Law on the Books
The formal written law as it exists in statutes and legal doctrine
Law in Action
How law actually operates in real-world contexts, including bias and inequality
Kafka’s “Before the Law”
Represents law as inaccessible, confusing, and controlled by authority figures
Inaccessible
Confusing
Controlled by authority figures
The man waits his entire life for access to the law but never gains entry
✅ Big idea:
Law is not always transparent or fair—it can feel unreachable and arbitrary
Dworkin – Rules vs Principles Rules
are strict legal standards; principles are moral guidelines used when rules produce unjust outcomes
Rules
Clear, specific legal standards
Must be followed strictly
Principles
Broader moral ideas (ex: fairness, justice)
Used when rules lead to unfair outcomes
Dworkin – Gap Filling Judges
must interpret and fill gaps in statutes when laws are incomplete or unclear
Laws are incomplete → judges must interpret them
Courts step in when statutes don’t cover a situation
Riggs v. Palmer → no rule said murderer can’t inherit
→ court used principle: “no one should profit from wrongdoing”
Common Law vs Equity Common law
relies on precedent and monetary damages; equity focuses on fairness and non-monetary remedies like injunctions
Based on precedent
Remedies = money damages
Based on fairness
Remedies = injunctions, court orders
exists because strict law can sometimes produce unfair results
MLK – Just vs Unjust Laws
From Letter from Birmingham Jail:
A law is unjust if:
It targets minorities who had no voice in creating it
It is applied unfairly
It violates moral law
A law is just if:
It applies equally
It reflects moral principles
People had a role in creating it
✅ Exam tip:
Tie to natural law theory (law = morality)
Microlaw, Uncodified Legal Orders, Law in Everyday Life
Microlaw (Reisman)
Everyday rules (ex: personal space, social behavior)
Uncodified Legal Orders
Informal systems (customs, norms, private rules)
Law in Everyday Life (Calavita)
Law is not just courts—it shapes daily interactions
✅ Big idea:
Law exists outside formal institutions
Malinowski’s views about the relationship between law and informal social control
Law = all forms of social control
Includes informal norms
Schwartz’s views about the relationship between law and informal social control
Law = only formal institutions
Informal rules ≠ law unless they fail
Nielsen’s 4 Paradigms (Street Harassment Laws)
Explains why people oppose laws:
Freedom-based → laws restrict personal liberty
Skepticism → laws won’t be enforced properly
Distrust of authority → police/government misuse power
Ineffectiveness → law won’t solve the problem
Rule of Law (Raz)
Core idea:
Everyone is subject to the law, applied fairly and equally
Key principles:
Laws are clear and public
No retroactive punishment
Due process
Independent judiciary
Consistency
✅ Why it matters:
Prevents arbitrary government power
Precedent & Rule of Law (Casey, Dobbs)
Precedent ensures:
Stability
Predictability
Fairness
Casey
Upheld Roe → emphasized legitimacy and reliance
Dobbs
Overturned Roe → argued precedent was wrong
✅ Key tension:
Stability vs correcting past mistakes
Presidential Immunity & Rule of Law (Trump v. US)
Raises question:
👉 Are leaders above the law?
Rule of law says:
No one is above the law
Immunity suggests:
Some protection for official acts
✅ Big debate:
Accountability vs executive power
Justifications for Stare Decisis
Efficiency → saves time
Fairness → similar cases treated alike
Reliance → people depend on law
Legitimacy → trust in courts
Stability → consistency over time
Reasons to Overturn Precedent
Bad reasoning
Unworkable rule
Social change
Outdated decision
✅ Example: Dobbs overturning Roe
Discretion vs Rule of Law (Klockars)
Discretion
Flexibility in decision-making
Problem
Can lead to inconsistency or bias
Klockars’ idea
Police decisions usually make sense in context
But discretion can still challenge fairness
STARE DECISIS: WHY FOLLOW PRECEDENT vs. WHY OVERTURN IT (Gely)
🔹 Why Courts FOLLOW Precedent (Stare Decisis) 1. Efficiency
Courts don’t have to re-decide the same issues repeatedly
Saves time and resources
Makes the legal system more manageable
✅ Example: Courts rely on established negligence rules instead of reinventing them every case
2. Fairness (Equality)
Similar cases should be treated alike
Prevents arbitrary decisions
✅ Key idea:
If two people have the same case, they should get the same outcome
3. Reliance
People and institutions depend on existing law when making decisions
Changing the law suddenly can disrupt lives
✅ Example:
In Planned Parenthood v. Casey, the Court said people relied on Roe when making life decisions
4. Legitimacy
Following precedent builds trust in the judiciary
Makes courts seem stable, consistent, and not political
✅ Key idea:
If courts change decisions too easily, people may see them as biased or unstable
🔹 Why Courts OVERTURN Precedent 1. Poor Reasoning
The original decision was legally or logically flawed
✅ Example:
In Dobbs, the Court said Roe was “egregiously wrong”
2. Unworkability
The rule is too confusing or difficult to apply
✅ Example:
The “undue burden” test was criticized as unclear and inconsistent
3. Outdated Decision
The precedent no longer reflects current law or understanding
4. Changed Social Circumstances
Society has evolved, so the law must adapt
✅ Key idea:
Law is not static—it must respond to real-world changes
🔹 Why Courts FOLLOW Precedent (Stare Decisis) 1. Efficiency
Courts don’t have to re-decide the same issues repeatedly
Saves time and resources
Makes the legal system more manageable
✅ Example: Courts rely on established negligence rules instead of reinventing them every case
2. Fairness (Equality)
Similar cases should be treated alike
Prevents arbitrary decisions
✅ Key idea:
If two people have the same case, they should get the same outcome
3. Reliance
People and institutions depend on existing law when making decisions
Changing the law suddenly can disrupt lives
✅ Example:
In Planned Parenthood v. Casey, the Court said people relied on Roe when making life decisions
4. Legitimacy
Following precedent builds trust in the judiciary
Makes courts seem stable, consistent, and not political
✅ Key idea:
If courts change decisions too easily, people may see them as biased or unstable
🔹 Why Courts OVERTURN Precedent 1. Poor Reasoning
The original decision was legally or logically flawed
✅ Example:
In Dobbs, the Court said Roe was “egregiously wrong”
2. Unworkability
The rule is too confusing or difficult to apply
✅ Example:
The “undue burden” test was criticized as unclear and inconsistent
3. Outdated Decision
The precedent no longer reflects current law or understanding
4. Changed Social Circumstances
Society has evolved, so the law must adapt
✅ Key idea:
Law is not static—it must respond to real-world changes
⚖ BIG PICTURE TENSION (THIS IS WHAT PROFESSORS TEST)
👉 Stability vs Change
Following precedent = stability, predictability
Overturning precedent = flexibility, correction of mistakes
✅ A+ insight:
“The doctrine of stare decisis balances the need for legal stability with the need to correct past errors and adapt to changing societal conditions.”
⚖ BIG PICTURE TENSION (THIS IS WHAT PROFESSORS TEST)
👉 Stability vs Change
Following precedent = stability, predictability
Overturning precedent = flexibility, correction of mistakes
✅ A+ insight:
“The doctrine of stare decisis balances the need for legal stability with the need to correct past errors and adapt to changing societal conditions.”
DISCRETION vs RULE OF LAW (KLOCKARS)
🔹 What is Discretion?
The ability of legal actors (especially police) to make judgment calls
Not every situation is strictly controlled by rules
🔹 Positive Relationship (Benefits of Discretion) 1. Flexibility
Allows officials to adapt law to real-world situations
2. Practicality
Laws can’t cover every scenario → discretion fills gaps
3. Efficiency
Prevents overload of the legal system
4. Human Judgment
Allows compassion and context (ex: warning vs arrest)
✅ Klockars’ point:
Police decisions often seem reasonable when viewed from their perspective
🔹 Negative Relationship (Risks of Discretion) 1. Inconsistency
Different people treated differently
2. Bias / Discrimination
Decisions may reflect personal or systemic bias
3. Abuse of Power
Too much discretion can lead to unfair enforcement
4. Undermines Rule of Law
Law is supposed to be predictable and equal—but discretion weakens that
⚖ BIG TENSION (IMPORTANT FOR ESSAYS)
👉 Flexibility vs Equality
Discretion = necessary for real-world application
But too much discretion = threatens fairness and consistency
Law on the books:
The Proximate Cause doctrine means that a defendant can only be held liable for harm that is a reasonably foreseeable result of the negligent act
Law in action
refers to how laws are actually applied, enforced, and experienced in daily life, rather than how they are written in statute books. It focuses on the practical application of law, including the role of discretion by police, prosecutors, and citizens, emphasizing social, economic, and political context over strict, formal legal doctrine.
Internalist Perspective
Law is autonomous
Law: economy, culture, society, politics → nothing outside of this affects the law
Externalist Perspective
posits that mental content, knowledge, or justification is determined by factors outside an individual's body, such as environmental, social, or causal connections. It challenges internalist views by arguing that cognitive processes can extend into the environment and that belief justification depends on reliable, external processes.
Law is Autonomous
posits that legal systems are self-governing, independent structures driven by internal rules and reasoning, rather than merely reflecting social or political forces. This concept suggests legal decisions stem from specialized legal knowledge rather than external economic or political pressures, maintaining a "self-mastery" that focuses on justice.
Law is NOT autonomous
The perspective that law is not autonomous argues that legal systems are deeply embedded in, and shaped by, social, economic, and political forces rather than existing as an independent, purely rational discipline. Law is viewed as a tool for achieving social ends or maintaining power, influenced by culture and inequality, rather than a self-contained set of principles.
Classical legal thought
Legal science
Law is a set of fixed, neutral principles
Judges don’t make law, they discover it
Formal legal reasoning through the application of logic
Legal realism
rejection of classical legal thought
“The life of the law is not logic, it is experience” O.W. Holmes
Judges “and other legal actors) decide cases based on personal preferences, biases, ideologies
Legal rules are indeterminate
Legal precedent is used as a post hoc rationalization
Doctrinal Study of Law
systematic, library-based analysis of legal rules, principles, and concepts, often called "black-letter law". It focuses on interpreting primary sources—cases, statutes, and regulations—to analyze the current state of law, identifying inconsistencies, and organizing legal principles into a coherent system.
Empirical Legal Studies (ELS)
an interdisciplinary approach that uses social science research methods—including quantitative statistics, surveys, and qualitative interviews—to study law, legal procedures, and legal theory. ELS focuses on examining real-world legal data to evaluate law and policy, often concentrating on purely legal questions.
Law in Action: John T. Noonan, Persons and Masks of the Law
Mrs. Palsgraf was a single parent with 3 children
Annual income of $416
LIRR had assets of $114 million and annual net income of $4 million
In 1924 RRs killed 108 passengers and injured 3,200 in platform accidents
The Brooklyn jury were likely working class people who used the train daily
The NY judges were upper-class and likely used taxis and limos
Post hoc rationalization:
the unconscious process of structuring logical justifications for decisions or beliefs that were actually made based on intuition, emotion, or whim. It acts as a defense mechanism, creating a “story” to explain behavior after the fact, often to reduce cognitive dissonance or align with new information
Functions of the Rule of Law
Limited government
Social control: refers to the regulations, mechanisms, and sanctions—both formal (laws, police) and informal (norms, peer pressure)—that societies use to maintain order and encourage conformity to social norms. It regulates individual behavior through social bonds, socialization, and surveillance to prevent deviance.
Social contract → works both ways
Constitutional law:
defines what the problems and limites of governments powers are
Principles of the rule of law:
Limited government
Government by rules
Generally applicable
Precisely defined
Consistently applied
Fair warning
Publicly communicated
No ex post facto laws
Relatively stable
Procedural regularity
Due process
Like cases should be treated alike
Independent judiciary
a system where judges make impartial decisions based solely on law and facts, free from political pressure, legislative interference, or popular opinion. It is essential for maintaining the rule of law, protecting individual rights against government overreach, and ensuring equal justice.
The rule of law
All people should be ruled by just laws subject to the following principles:
No one is above the law, the law is applied equally and fairly:
The law is known and accessible
Presumption of innocence
Open, independent, and impartial judiciary
No retrospective laws should be made
Laws are made in an open and transparent way by the people
Government agencies to behave as model litigants
Fair and prompt trials
Estate planning
essential, ongoing process of arranging for the management and transfer of a person's assets during their life and after death, generally involving a will, trusts, power of attorney, and healthcare directives. It minimizes legal issues, taxes, and family conflict, and should be updated every 3–5 years or after major life events.
Full enforcement
the strict, uncompromising application of rules, security policies, or regulations, where all violations are blocked or penalized.
Separation of powers
a constitutional doctrine dividing government into three co-equal branches—legislative (Congress), executive (President), and judicial (Courts)—to prevent tyranny and ensure liberty. Each branch has distinct powers (law-making, enforcement, interpretation) and "checks" others to ensure balanced authority.
A government of flaws
refers to systemic, constitutional, or structural weaknesses that hinder effective governance, often resulting in polarization, gridlock, and decreased public trust. Common flaws include excessive partisan influence, the inability of institutions to address crises, and mechanisms that allow minority rule or protect power over public welfare.
Overcriminalization
excessive reliance on criminal law to address societal issues, resulting in too many vague laws and regulations, particularly regarding "victimless" or minor offenses. This trend features over 4,450 federal crimes, plus thousands of regulations, which often lack mens rea (criminal intent) requirements. It drives mass incarceration, disproportionately impacts minority communities, and erodes trust in the justice system.
Klocker
In the course of their job, police don’t generally make crazy decisions. They make decisions that make sense if the ordinary citizen or legislator were asked.
Precedent:
a feature of the common law and legal system is derived from English common law. Uses many of the practices of English common law, even though our system is different
Making legal decisions through the presence of other legal decisions (precedent)
Build on cases, newer situations arise, and apply rules in those old cases that don’t always fit perfectly, and extend rule, or just completely get rid of old precedent
Doctrine of Stare Decisis: “let the decision stand”
What we mean by deciding cases through precedent
Centuries later: decide cases by applying legal rules that came from precedent (earlier cases)
Law equity:
court that figures out way that make more sense. “Let’s do what’s fair”.
Law Remedies:
monetary damages to compensate loss
equitable remedies:
to do what’s fair that don’t involve money but involve ordering some kind of action, not based on precedent but fairness on specific case
Law courts:
find a legal way, monetary way, to compensate people for their damages
What are the jusitifications for stare decisis?
Efficiency
• Judicial Legitimacy
• Equality/Fairness
• Reliance
Roe v. Wade (1973)
Earlier precedents, especially Griswold v. Connecticut (1965) held that the right to privacy was included in the liberties protected by the 14th Amendment
Roe held that the right to privacy included the right to terminate a pregnancy
This right was not absolute; states had some valid interests in regulating abortion
Trimester framework:
Months 0-3: states have no valid interest in regulation
Months 4-6: states may regulate in the interest of the health of the mother
Months 7-9: states have a legitimate interest in protecting the life of the fetus
Precedent:
a previous legal decision, action, or rule that serves as an authority or guide for determining1 similar cases in the future. It is a foundational component of common law systems, ensuring consistency and fairness in the judicial system by treating similar situations alike.
Stare Decisis:
legal doctrine requiring courts to follow historical precedents when ruling on similar cases, ensuring consistency, stability, and predictability in law. Latin for "to stand by things decided," it binds lower courts to higher court decisions (vertical) and encourages courts to follow their own prior rulings (horizontal).
Way to make law is to decide present cases based on the reasoning and rules derived from that reasoning in prior/earlier cases in proceeding or precedent cases.
Planned Parenthood v. Casey (1992)
Did Pennsylvania’s requirements of a waiting period, spousal notification, and parental consent violate Roe v. Wade?
“The essential holding of Roe v. Wade should be retrained and once again reaffirmed
Reliance and legitimacy
Replaced the trimester framework with the “undue burden” test
Only the spousal notification provision imposed an undue burden
Dobbs v. Jackson Women’s Health Org. (2022)
Mississippi law banned most abortions after 15 weeks of pregnant
Overturned Roe and Casey
Rights that are not specifically mentioned in the Consituttion must be “deeply rooted int his Nation’s history and tradition”
Roe was “egregiously wrong from the start”
Undue burden standard is unworkable
Reliance interests are speculative
Dissent:
Criticizes the majority’s ‘cavalier approach’ to overturning precedent
The majority opinion will destroy the legitimacy of the Court
“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed”
The majority opinion puts other rights at risk, including same-sex marriage, interracial marriage, and the right to use contraception
Laws should guide us to interpret statutes
Testator: person who creates and executes a valid last will and testament, controlling the distribution of their assets after death.
“No unjust law is not at all”
Natural Law:
Law = morality
Law is the body of moral principles that is common to all humankind
Laws of nature or God
Debate on sources of what the source of the principles are. Natural law philosophers agree that there must besome sort of agreements that the law must confort those beliefs.
Law = justice
Law = what ought to be
Has to be a connection between law and morality. Law is a means of putting into written language of all the things we associate things with law. Law and justice are inseparable. An unjust law is not a law at all.
Legal Positivism
Law does not equal morality
Law is the command of the sovereign
Law is the creation of governmental power in a society
Law = power
Law = what is
Until the law is changed, it is the law
Law is what is posited → what is stated. Ex: courts can’t change the terms of the will.
Ronald Dworkin
“No way a legislator can think of everything”
Key functions: gap filling
No such thing as a perfect statute. In real life, situations arise. Courts should be allowed to fill the gaps what the statutes covers and what the actual situations come up in real life.
Draws a distinction between rules vs principles. Applying the law as written leads to a fair and just outcome. Court can examine rules against broader social principles. “No one should profit off of their own wrong doing”. Principles should take precedence over the laws → courts are not free to not follow the rules. Applying the rules is going to lead to acceptable outcomes, only when the rules seem to come into conflict with broadly held principles, should the court step in and try to mediate the contradiction?
Ways Dr. King says you can see an unjust law:
Inflicted on a minority as a result to not have the right to vote (Democratic principles)
Laws are just if everybody had a hand in making them
Just on its face, but unjust on its application
Main Themes:
Are laws different than rules or norms?
Law and popular culture
Uncodified legal orders
Uncodified legal orders are rules, principles, or laws not formally compiled into a single statutory code, relying instead on common law, judicial precedents, customs, or temporary legislation. These laws are legally binding but often found in scattered court decisions, statutes at large, or unwritten constitutional conventions.
The Hegemony of Law
refers to the way legal systems, rather than just brute force, establish dominance by making their rules and ideologies appear natural, neutral, and consensual. It operates by permeating everyday life, legal consciousness, and societal institutions (schools, courts, economy) to manufacture compliance and normalize power imbalances, often protecting elite interests.
Legal Consciousness
refers to how individuals experience, interpret, and act upon the law in their daily lives, blending legal knowledge, attitudes, and behavioral habits. It explores the "law in action"—how people navigate or avoid legal systems—rather than just "law on the books," explaining how legal authority is sustained through social interaction.
What is Law?
B. Malinowski
Law is any form of social control
Any rules that regulate behavior and sanction deviant behavior either formally or informally
Law on the books
Social norms
Rules that we live by (microlaw)
Anthropologist
Broad idea of what constitutes law
Any form of social control can be considered/studied as a form of law
P. Schwartz
Law includes formal structures (only)
Courts, police departments, laws, etc.
Law does not exist until informal social controls break down
As long as informal social controls function properly to regulate targeted behavior, laws are unnecessary
Uncodified Legal Orders
Informal rules and dispute resolution systems
Private association rules
Industry standards
Microlaw (Michael Reisman)
Social conventions
Rules of every day interaction