LGL STD 100 REVIEW 1

de jure

ideal of the law (what is written)

de facto

operation of the law

judicial restraint

procedural approach to the exercise of judicial review - judges should only decide matters before them and should not do anything unless necessary to resolve the case

formalism

cases should be decided by applying the law to the facts and biases should be cabined, implies mechanical jurisprudence and legal determinism

mechanical jurisprudence

deciding cases by applying the law to the facts (like a mathematical function)

polycentric case

case where decisions affect people outside of the court

legal determinism

judicial decisions are predicted by the law

legal realism

the law is best understood by studying how it actually operates, not by how it is meant to operate

positivism

knowledge is best attained through scientific methods of the natural sciences (cause and effect)

behaviorism

should only look at actions (very scientific, input output), should not try to figure out what is going on in their heads

attitudinal model

aka personal policy preference model - decisions based on personal policy preferences to a significant degree

strategic model

like attitudinal model but adds complexity since judges know preferences of others and use that knowledge to strategically decide

counter-majoritarian difficulty

judges who are NOT elected can throw out decisions made by those who ARE elected

explicit bias

bias that is consciously held (is aware and admits it exists)

implicit bias

bias that is unconsciously held

affective disgust bias

people tend to evaluate more harshly when disgusted

epistemology

the investigation of what distinguishes true and false, rational and irrational

bench trial

trial in front of only a judge

jury trial

trial in front of both a judge and a jury

hearsay

a statement that is made other than by a witness while testifying

expert testimony

a witness who is qualified as an expert by knowledge, etc. and testifies in the form of an opinion or otherwise

the prosecutor's fallacy

when judges display their very average epistemic abilities

interpretivism

there are simply too many variables to measure as dependent variables to use cause and effect examination like in positivism

impermissible bias

biases judges are not supposed to consider (gender, race, sexual orientation, etc.)

stare decisis

legal principle of determining points in litigation according to precedent

judicial review

when judges overturn things decided by the people (ex. because it conflicts with the Constitution)

judicial activism

occurs when judges write subjective policy preferences into their legal decisions

epistemic exceptionalism

judges' cognitive processes can be trusted to operate with greater competence and objectivity than those of laypersons

circuit split

when two federal circuits have different rules on the same issue

mechanisms to encourage judicial restraint

standing, case or controversy, stare decisis

court systems in the United States

state and federal

three levels of courts

trial, first-level appellate, second-level appellate

direction that stare decisis works

only vertically, not horizontally or diagonally

second-level appellate court within the federal system

Supreme Court of the United States

federal court system

district courts, circuit courts, Supreme Court of the United States

how many circuits in the US federal court system?

13

cases that SCOTUS can review

all cases in the federal system, also cases appealed from the state court systems

what does it mean for court systems to operate like a pyramid?

the higher the level of court, the less the number of courts

typically, how many second-level appellate courts are there per system?

one per state in the state system, SCOTUS for federal system

the only way to resolve a circuit split

SCOTUS must issue its own rule (can choose one of the two states or create its own)

two ways stare decisis operates

rulings of higher courts bind courts beneath them, binds future decisions (precedence)

when can a court overrule its own prior ruling?

when it thinks original decision was wrong, original decision was correct but has now become inconsistent with the law

who brings the lawsuit in civil lawsuits?

the wronged party

who is the punishment from in civil cases?

the individual(s) wronged

areas of civil law

contracts, wills, torts

which part of civil law is the most like criminal law?

torts - causing harm to another person

relief available from civil suits

injunctive relief and money damages

injunctive relief

something specific that the court orders you to do for a civil suit

who is the punishment from in criminal cases?

society

who brings the lawsuits in criminal cases?

the state

relief available from criminal suits

fines, incarceration

can cases be simultaneously civil and criminal?

yes, thus, one can be punished twice for the same crime

legislative branch's relationship to the law

creates law

judicial branch's relationship to the law

reviews and interprets law

executive branch's relationship to the law

enforces law

case or controversy

there must be a dispute where opposite sides want different things, if there is no dispute there is no case

judicial dissent

written by a judge who disagrees with the majority opinion of the court

what did Pritchett find in his experiment?

judges were voting and dissenting along party lines

Pritchett's circular argument

I know these judges are conservative because they vote like this and I prove they are conservative because they vote like this

roots of legal realism

positivism, behaviorism

what did Karl Llewellyn find?

laws are often indeterminate because you can find legal precedence for opposite positions on most issues

what did Jerome Frank say?

judicial decisions are not based on the law, they are based on what the judge considers "fair", legal precedents are brought in afterwards to justify the decisions

core claim of early legal realists

the law is not completely predictive of a judicial decision, especially when the case is marginal - judges then use their own judgement

what early legal realists did NOT claim

the law has no impact on judicial decisions

how do Jeffrey Segal and Albert Cover determine the ideological slant of a SCOTUS justice?

look at editorials written BEFORE the nomination process since afterwards, editorials tend to be about their SCOTUS votes

what did Jeffrey Segal and Albert Cover find?

r \= 0.8, very strong correlation in civil liberties cases

how can Congress constrain SCOTUS?

amend the Constitution, overturn the ruling, limit funding, etc.

what evidence do Epstein, Knight, and Martin present for the strategic model?

Justice White's voting pattern on civil liberties cases under different administrations

limits of attitudinal models

attitudinal more predictive as constraints on the court decreases, worse predictions as you go down the courts

least constrained court

SCOTUS

can explicit and implicit biases be orthogonal?

yes, you can explicitly say something but automatically associate in the opposite way

implications for judicial decision making

sentencing hearings, evidentiary rulings, deciding if a minor can be tried as an adult, etc.

when would we expect implicit biases to be most prevalent?

variable of interest is not in the foreground, decisions have to be quick, judge knows decision is not going to be reviewed

Federal Rules of Evidence (FRE) 403 and 609

the exclusion of relevant evidence because it's prejudicial effect outweights its probative value

prejudicial effect

prejudice against defendant

probative value

how much the evidence proves the point asserted

what is the problem with hearsay?

you cannot cross examine to see if the person actually said it

why are scientists skeptical of "experts"?

judges cannot tell if they are credible

proposals for more reliable expert testimony

bifurcated system (another judge reviews all evidence), judge appoints special masters for more review, greater culture of epistemic humility

what is the Bill of Rights meant to do?

protect minorities and civil liberties

why is something becoming a "right" a big deal?

when the issue becomes about a right, it becomes a demand of the court rather than a bargain

what is the "hollow hope"?

the hope that the courts can be effective for creating social change and protecting minorities (platonic ideal)

why is the "hollow hope" hollow?

courts are limited, lack judicial independence from other branches, have restricted abilities to implement impactful social policies

for the court to effectuate social change, they must ...

already have strong precedent in support, have support from legislature, executive, and public

flypaper court

attracts activists because it seems quick and easy but actually just traps them there

advantage of using courts for social change

court ruling can stimulate social momentum

cases where courts have affectuated social change

brown v board, roe v wade, obergefell v hodges, etc.

2 camps Rosenberg divides legal academics into about the law's ability to create social change

the law cannot be used this way and tends to reflect the will of the elites, the law can meaningfully effectuate social change

what does McCann mean when he says the law is "constitutive"?

the law has the power to establish or give existence to things, it speaks prompting changes in public opinion or legal consciousness

McCann's "bottoms up" approach

interviewd people at the ground (acvtivists) rather than leaders (judges, famous lawyers)

McCann's argument

the law can be used as a club - just the threat of litigation is impactful

law as a transformation agent

once the courts frame something as a legal wrong or you have a right to something, it changes public opinion

McCann's recommendation to legal scholars

stop focusing exclusively on elites and look to changes on the ground

Hull's 3 types of legal consciousness

before the law (have high opinion), with the law (sees law as manipulable, can bargain), against the law (feels trapped)

Hull's expectation and reality

expected most people to be against the law but actually found the other two (before the law, with the law) to be dominant

what did Obergefell v Hodges hold?

held barring same-sex marriage to be unconstitutional

Griswald v Connecticut

birth control, invoked the right to privacy

how does Justice Kennedy portray plaintiffs in Obergefell v Hodges?

does not portray them as against the law but rather, with marriage

Justice Kennedy's explanation for the societal change about the legality of same-sex marriage

society is going this way, we are just following

Justice Roberts' argument

there is nothing in the constitution that gives same-sex marriage to the federal government, it should be determined through democratic process (voting)