Legal Studies 101 Final

Max Weber

• German sociologist, historian, jurist, and political economist

• Developed sociology and social sciences- focused on how modern society came to be modern

• Developed rationalization thesis to explain social action

Rationalization and Rationality

• Individual level: Means-end calculations to get the ultimate goal (what do I need to get to what I want?)

  • Modern people live methodically, trusting planning and systems culturally and get frustrated when things don’t occur according to plan and the system

• Societal Level: Institutions governed by formal rules, application of these rules leads to greater efficiency in pursuing institution’s goals

  • Ex) Factory work

Rational Legal Systems

• Means for settling disputes defined by rules

• These rules are arranged to forma logically clar, internally consistent, gapless system

• Rules are general and abstracted rather than mired in particular facts (more powerful)

• Decisions are controlled by the intellect

Irrational Legal Systems

• Disputes settled arbitrarily

• Multiple different rules can govern a particular case

• Rules bogged down in the particulars making them seem arbitrary

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

Formal Legal Systems

• Emphasis on procedures used to arrive at decisions

• Promote equality of opportunity and access among contestants (formal equality)

• Outcome is determined without regard to ethical, social, political, or economic considerations

Substantive Legal Systems

• Emphasis is on obtaining outcomes that meet or advance ethical or political goals

• Rules and procedures take a back seat to ensuring the best outcome

Trial by Ordeal

• Trial by iron, fire, or water- like Salem witch trials. Way of seeing if someone was telling the truth by a test allowing divine judgement 

Formal Irrational System Examples

• Prophetic revelations, trial by ordeal, oracles

Formal Rational System Examples

• Law based on logically clear, internally consistent rules, decisions reached through deductive process

• Justice is blind even if outcome is harsh, it is acceptable

Substantive Irrational System Examples

Judgement based on personal opinions of judge

Substantive Rational

Law systematically oriented towards non-legal norms (religion, ethical)

Conditions for Rationalization of Law

• Rise of the modern state

  • Power sharing between monarchs and aristocrats/merchant class

  • Has power to create the bureaucracy required

• Rise of Secularism

  • Law became more autonomous, about logical reasoning

• Professionalization of Law

  • Runs on rules and procedures of the professional class (not charisma or revelation)

• All of these make formal rational law

Paradox of Rationalization

• Laws become more rationalizded over time through their use

  • More rational, more internally consistent, more rule based

  • Less visible, less public, less "alive”

• Paradox:

  • Law becomes more efficient which makes it run more smoothly

  • More efficient it is, less we act need to use it

2 Social Purposes of Law

• Orders Society- sets behavioral norms and creates precedent

• Resolves disputes publicly- If people see how justice works, reinforces trust

Efficiency eroding the law

• More efficient ends up making it less public

  • Arbitration (Civil cases)

  • Mediation (civil cases)

  • Plea bargaining (Criminal cases)

• Faster and more efficient ways to do law, but all occurs behind closed doors which undermines the law’s core purposes

• Part of Weber’s ultimate paradox of modernity as law becomes more private

What’s distorting Civil Trials?

• Judges see themselves as problem solvers so encourage settlement

• More cases, wait time, cost, and uncertainty make people more likely to settle

• Fewer practitioners have experiences with trials, plaintiffa and defendants more uncertain about what will happen

Rise of Arbitration

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

• Arbitrator settles disputes in a private and possibly confidential method

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

• Weber wonders what happens to law when society is too efficient

Criminal Trials

• Plea Bargaining up

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

• Mandatory sentences make defendants more likely to plead

• More plea bargaining leads to less public trial

  • Trial penalty is people who insist on a trial risk harsher sentences

• Weber says more predictable, less transparent, less fair, more bureacratic, rational in a cold impersonal way

Karl Max

• German philosopher, sociologist, economist, historian

• Rev scholar-activist known for “The Communist Manifesto” and “Das Kapital”

• Theories powerful ways of thinking about inequality and law

• Argued can’t understand power w/o understanding the economy

• Said societal changes become law because of economic relationships

Marx’s Base-Superstructure model

• argues that the Base (economy, how things are produced) and its relationship to the superstructure (everything else in society like Law, politics, education) always results in one class dominating the other

  • Esp bc the more powerful class uses their upper hand to control the base and superstructure

  • Ex) Lord/peasant, bourgeoisie/proletariat

Role of the Law in Superstructure

• Creates “false consciousness” by granting rights

  • Universality and equality but in a fundamentally unequal social structure

• Law creates and reifies private property

• Gives appearance of neutrality

• Creates precedent

Critiques of Marx

• Too simplistic

  • Class divisions could be more subtle and less stark than the way he describes

• Classes may not be as unified in their desireDoes the ruling class recognize and act in the interests of what their class wants?

• Ruling class may not always win- could be overthrown

• How do yo explain laws regulating behavior of capital and redistributing resources downward

Kelo v. City of New London

• Eminent domain: Government’s power to take private property for public use for fair compensation

  • in 5th amendment

• Question before SCOTUS

  • Does a city violate the 5th amendment if it takes private property and sells it for private development with the hopes the development will help the city’s bad economy

  • Decided no it didn’t

• 40+ states passed statutes changing eminent domain laws to shield private property better

One shotters