Legal Studies 206 Final Exam Short Answers

Who are one shotters and who are repeat players? Why does it matter?

One shotters: those who have only occasional recourse to the courts

ex) divorcing spouses, injured person in a car accident, criminals, Chipotle victims

Repeat players: those who are engaged in many similar litigations over time

ex) insurance companies, prosecutors, finance companies, Chipotle

In the legal system, one shotters are at a significant disadvantage when compared to repeat players.

Because repeat players are those that engage in many litigations over time, they have the background and resource to succeed in court. They are more focused on long term resolutions and precedents than just the case in front of them. They may lose the battle, but they will win the war. Often receive precedents that are beneficial to them in the long run.

System gives structural advantages to Repeat Players

RPs' many advantages:

Can play for rules

Low start-up costs (already have/know a layer)

Big corporations already have lawyers

Lots of advanced knowledge

Tend to be larger, richer, and more powerful

Business Vs. Person

What is the pyramid of disputes?

Trials with outcomes:

Trials: Trials

Filings: By lawyers

Other parties denise (dispute): If the responsible party says it is not their fault, this becomes a dispute. Which may or may not end up in court.

e.g.) Calls chipotle, tells them, and they deny!!!

Telling the other party they are responsible (claiming): Once the injury is named and an outside party is blamed, a claim comes when the party voices this to the responsible party.

e.g.) You call chipotle and claim that they are responsible for your illness.

Deciding someone else is responsible (blaming): Deciding who to blame and that they are responsible. Blaming is unstable and changing, complicated and incomplete. Might not know who to actually blame. I

e.g.) I fell ill...I ate a chipotle burrito for lunch.. They must be the cause of my food poisoning!

Perceived injurious experiences (naming): Able to see. Necessarily subjective, requires information.

e.g.) I got food poisoning...Not my fault that I suddenly fell ill... I see that I'm ill and this is naming the injurious experience.

Unperceived injurious experiences: the injustices inflicted upon us we don't recognize as

e.g.) The water I've been drinking is polluted...dunno about it.

Describe the legal formalist model (and our critiques). You may draw it as a diagram but also explain the relevant parts.

Legal formalist model of law and social change starts off as...

Problem --> law --> rights --> precedent --> change

When there is a problem, the legal systems are in place for those who believe their rights have been violated. People are able to bring a case to court and rectify the problem through the legal system and through juries.

A critique of the legal formalist model is that it's rather simplistic, and most cases in which rights are violated (discrimination cases) they don't actually result in trials or tangible social change.

There must be a perceived problem

Next, you go to the law

If the law supports you then yay!

If it doesn't then you go to your rights

If still doesn't side with you, organize to form a new precedent

This culminates in change which resolves the problem.

Critiques:

If we decide as a matter of policy to use a rights model, THEN we rely on individuals and lawyers.

THEREFORE how that process works depends on how effective law can be

But as we see in the example of RPs and OSs, the structure naturally favors RPs.

Now we have a breakdown of law as social change because it favors the large and well off over the individual.

What is playing for the rules and why does it matter?

Using strategies to try to affect long-term precedence, talked about at the very beginning

Not just trying to win case -> Changes law's function in society?

How do RPs "play the litigation game" differently than the "OS"?

Failures of "justice" in litigation are about position in the system as much as they are about class interests or wealth.

Change court dynamics (RP). Makes it hard for OS to go to court without the help of private attorneys general

Naming, blaming, and claiming . . . describe and give an example

NAMING an act of wrongdoing, BLAMING someone for it, and CLAIMING that they should be responsible

Naming is the act of naming a wrongdoing, (un-PIE--> PIE)

Blaming is the act of blaming someone for it

Claiming is the act of claiming that someone (the person being blamed) is responsible for it

Liebeck NAMED the wrongdoing: 3rd degree burns on 16% of her body (vagina!), skin grafts, week in hospital

She then BLAMED someone for it: McDonald's, for giving her really hot coffee (first for the burns in her case and then for the repeated ignoring of this issue)

She then CLAIMED: McDonald's is responsible do should pay for medical bills and damages, and make coffee differently

What are the 3 kinds of deterrence? Explain.

General - Impact from external consequences

Someone stole car, went to jail, I won't steal because I don't want to go to jail

Deters others from committing crime

Specific - Impact from own consequences

I stole car, I went to jail, now I won't steal because I don't want to go back to jail

Deters someone from committing a crime because s/he doesn't want to go back to jail

Incarceration/Incapacitation - Impact from removing criminals from society

Car thief is in jail, now car thief can't steal again. Now I'm safe.

Remove someone from society, cannot commit crimes any longer

Society can't be harmed while they are in prison.

What the 3 elements are of deterrence that impact whether a sanction will have a deterrent effect?

Characteristics of the threat/punishment:

Things affecting efficacy

Severity (not suuuuper important)

How strict the punishments actually are.

Sometimes the stricter the punishments the greater the deterrence.

BUT what if someone is intoxicated? Or addicted?

Certainty (likelihood of sanction)

You see a police officer just walk by...

How likely to get this punishment

An increase in certainty increases deterrence

Celerity (speed of imposing sanction)

Is it $10 in 20 years or $10 on the spot?

Characteristics of the person subject to sanction

How effective punishment is and how much we're willing to give up depends on person's personality and character

Different cultures/beliefs will impact whether or not potential punishment will deter someone

Different standards of risk we're willing to take.

Characteristics of the behavior to control

If you try to deter someone from heroin, person's need for heroin is much higher because they're addicted.

They will less likely be deterred than someone who is given a parking ticket for parking illegally

What is the central tenant of procedural justice (aka legitimacy)?

Not based on "winning or losing", but on perceived fairness and justness of processes.

Fair process represents views of all parties, is consistent, has quality decisions, is correctable, is ethical, and has an impartial decision maker.

People are more likely to comply with the law if they think the law's processes are fair

Enacting and enforcing law matters

Procedural justice is a theory that allows us to obtain voluntary compliance through internal values

Law's authority comes from process

People obey the law because it is legitimate

Law's legitimacy derives from its procedural fairness

This interaction is important in the police department

What are the 2 hemispheres of the legal profession? Give some examples from each and tell us why it matters.

Prestige Among Fields of Law & Two Hemispheres thesis of Heinz and Laumann

Corporate Client Sector: High status, little autonomy from clients

Securities

Patents

Antitrust, Defense

Personal Client Sector: Low Status, much autonomy from clients

Divorce

Consumer Law

General Family Law

Higher prestige in the corporate client sector; more talented intellectuals driven to these fields

End up perpetuating the issue of legal formalist model

(all the talent goes to the side of repeat players and as a result they always win!) :(

The bar itself is stratified

Certain kinds of clients get certain kinds of lawyers

Implications for access to justice

Implications for private attorneys general/civil rights

(Harder for private attorneys general because legal system is structured to favoe RP (galanter)

What are some strategies lawyers might use to convince their clients to accept strategies and outcomes that the client says he or she does not want?

Lawyers (particularly with people as clients)

Have the difficult task of translating law

Do so by distancing themselves (I know this isn't fair...but)

Emphasizing that the system does not produce "justice"

Focused more so on money ($$$)

Trash the legal system as corrupt

Not making justice available in legal process

Construction of client by focusing on $, not emotions

Basically, telling them to "deal with it" for unfair outcome because it's for the best

Sarat & Felster's observations in divorce lawyers.

What is jury nullification?

When a jury decides to acquit someone despite proof of guilt. Juries are always entitled to this process, but most unaware because they are not informed of it.

Pros and Cons to Jury Nullifications

Pro:

Fugitive slave law: juries refuse to convict escaped slaves and set them free

(ensuring someone doesn't go to jail for just smoking a bit of weed~~~)

Con:

Southern juries refusing to convict lynch mobs

Used a lot in the south (KKK crimes).