AUSTIN'S THEORY

Law is a command given by the sovereign and the sovereign is above the law.

Law = Command, Creator = Sovereign

Law reflects the set of beliefs of the sovereign

Sovereign must be understood in order to explain the laws

It doesnt matter if what they believe is true or right, it just matters what they believe.

AUSTIN'S THEORY

problems with the theory

Does not seem to apply to Democracy or aid us in understanding out system

Who is the sovereign in the US Constitution? We do not have one because all of our citizens are below the law- they can all be subject to punishment

(a King or Queen cannot)

It can be amended, they can change the law but they cannot make the law

AUSTIN'S THEORY

Why Do People Obey?

(1) Fear of Punishment

(2) Respect and Believe in Legitimacy of System

(3) Socialization and Upbringing

(They believe they "should" obey all laws- moral obligation)

AUSTIN'S THEORY

Conemporary American Politics

Over the last 20 years, people have begun to not recognize the legitimacy of laws because our system is broken.

Americans are losing respect for the law and for many of the leaders we put in charge.

It is a crisis of faith, people are moving towards anarchy- they do not want to follow laws that they do not like

ST. THOMAS AQUINAS

THEORY

13th century, precedes Austins Views

Law is related to God and no one is above the law

(Similar to Austin but God is the Sovereign, not an individual)

Gods laws are unknowable but we must try to follow them

Legislation is NOT sovereign if it contradicts God's will (But how do we know God's will? Its a guessing game of faith)

St. THOMAS AQUINAS

HIERARCHY OF LAW

(1) Eternal Law (God's Will): The Law, it is not known to us and we can never know it- but we attempt to interpret it on our own.

(2) Natural Law (Morality): Deals specifically with human beings and what we should or should not do. It splits the world into 3 things- The Good, The Bad, and The Benign. (Not our ideas of good and bad- Gods ideas)

(3) Divine Law (Revealed Components): Scriptures are the guidelines that God has revealed to us and we must infer his desires. Also, through Revelations and Visions we have the supplement to Scriptures- it is God speaking to us.

(4) Human Law (Rules We Create): It is in fact a law if it is God's will, but if it contradicts any of the above laws then it is NOT a law at all- bc it is not Gods will. Spiritual Beliefs predicts how one will behave and act.

FULLER

Law and Morality

(Coincides with Aquinas)

Law IS Morality,

a reflection of our moral sense

Humans have an obligation to disobey immoral laws

Laws do not have to be written down to be considered statute

Fuller believes we are always playing simantics with laws bc they can be interpreted differently and manipulated- MORALITY is what we implement when we must decipher statutes

HART

Law and Morality

(Positivist)

Law and Morality are distinctly different objects

Law refers to our written down statutes

Morality is what we use to decide what to do about a law

What the law is, is different than what it ought to be

HART/FULLER DEBATE

NAZI EXAMPLE

(Households must turn in anyone who is against the Nazi regime)

Hart's Outlook: Even though it was a bad law, it is still a law and we have a moral obligation to obey it. Our morality tell us if it is a good or bad law, but either way, we MUST obey it.

Fuller's Outlook: The Nazi's ruined our moral understanding so any laws they passed were immoral and arent supposed to be followed. Even though it is a statute, it isn't a law, because our morality tells us it is wrong.

GARFINKEL THEORY

Culture and Law

Culture is what gives our lives meaning, we cannot EVER escape culture- it prevents us from doing what we believe to be free will.

How to Study Culture:

(1) Breaching experiments- study culture at its boundaries

(2) Breaking the rules to test out sanctions and reactions; there are social consequences involved when cultural rules are broken. Informal sanctions like social neglect can be far more effective then any formal sanction on a behavior.

MALINOSWKI'S THEORY

Culture = Law

There are embedded social norms in all societies and if we break them, we experience social shame

Sometimes rules are written down, sometimes they are not

It is very ethnocentric to think if a cultures laws arent written down that they arent real and that no social structure exists...

Codification: Written down laws

BOHANNON'S THEORY

Culture and Law

Law and Culture are not the same thing!

Dislikes Malinowski's ideas

Law and Culture are related by they are not the same thing

Law is a Subset of Culture

We must identify the behaviors we find to be consequential and vital, and ignore the social preferences that don't matter

BOHANNON'S THEORY

Law and Culture

Important Components of Culture

Institutions are important components to culture because they determine what laws are and what is important (legal system)

Institutional framework controls law because the social world believes any society that lacks a legal institution lacks any type of law

Individuals do not matter, it is the structure of positions that counts the most- the positions continue to be filled and are never empty. One person retires, another person is hired in his place.

BOHANNON'S THEORY

Culture and Law

Cultural Gap

Cultures have generational gaps

The Law will ALWAYS lag behind Culture

Culture is ALWAYS changing and our legislation will ALWAYS be out of step with our current customs- lag (Homosexuality)

Law comes from Custom; Culture needs a legal institution

Law: "A peice of culture that has been doubley institutionalized" (both culturally and legally)

EMILE DURKHEIM'S THEORY

Shift in Society

He noticed a change taking place in our world and culture and he predicted that these inventions and modernization will be the end of humanity.

Pre-Industrial Times: small communities, everyone was similar and had intense social bonds

Post-Industrial Times: enlarging communities in urban area, pushes people apart by their differences and no longer have similarity bonds (we lost grip on relationships, norms, and customs- we now are intermixed and highly integrated- less things in common)

DURKHEIM'S THEORY

Solidarity and Law

The Law is Societies Mechanism for Identifying Possible Threats

Repressive Law or Mechanical Solidarity: the glue that binds people together, fundamentally represses change, law used to prevent differences. Law controls behaviors of new ideas because they threaten our mechanical glue

Restitutive Law or Organic Solidarity: law isnt a list of do's and dont's, it is relationships based on differences and ability to interact with strangers.

By looking at a societies legal structure, you can identify what type of glue is being used

DURKHIEM

Informal Responses

Help us predict where the law is going to go or what it is going to shift towards.

Social reactions teach us about evolving behaviors and social perceptions of such behavior

DURKHEIM

Unintended Positive Effects of Crime

It produces a uniformity of opinion

which creats a stronger social glue

The more extreme the crime is, there will be more extensive social unity

The collective social response to the interrupting stimuli (like 9/11) binds us closer together

Crime also identifies the boundries of our society- law doesnt describe boundries, society does

We continue to express more Organic Solidarity and move farther away from Mechanical Solidarity- We need traumatic events to bring us back to Mechanical, social unity. (Terror Attacks broughts our country together)

MAX WEBER'S THEORY

BUREAUCRACY

Bureaucracy is the inevitable result of growth

The Industrial Revolution caused a shift from spiritual mechanisms to secular explanations (Cynicism) and disconnected us by separating specialists.

Social relationships defined by RATIONALITY

Every aspect of life involves Rationality

Law IS Bureaucracy- we can't escape from it

Law influences Custom

MAX WEBER

Rational/Irrational

Substantive/Formal

Typology

Rational: Logic & Science

Irrational: Mystical & Supernatural

Formal: Established Rules

Substantive: Individual Circumstances

Substantive Irrationality (i.e. a religious judge)

Formal Irrationality (i.e. Revelations, Oaths- i.e. Moses)

Substantive Rationality (i.e. Koran based laws)

Formal Rationality (i.e. logical, consistent rules)

DIAMOND'S THEORY

(A Super Cynic)

Bureaucracy is an "IT"

Law Impacts Custom

Bureaucracy becomes a self serving mechanism- it becomes an IT with its own set of needs and desires.

IT begins to consume our resources and we cannot shrink a growing bureaucracy

BLACK'S THEORY

Legal Positivism

Law is Government Social Control

No Government = No Law

Laws do not equal Customs

Any government action that isnt aimed towards social control is NOT a law

He thinks quantitatively of law- either more social control or less social control.

He is seeking testable propositins and only by this way can we find the changes in law.

BLACK

The Independent Variavles Influencing Law

(1) Stratification: The amount of stratification in a society determines the hierarchy of power and control. Law can move upward or downward within a society and the higher up you are, the more powerful you are and the more familiar you are with social control. The greater the difference between two people's social status- the higher the chances of social control being used- directed by upper class towards lower class

(2) Differentiation (Morphology): The more differentiation- the more law. Law and the degree of morphology have a curvilinear relationship.

(3) Culture: Symbolic component of social life- lots of culture means lots of symbols. Culture increases aslaw increases.

(4) Organization: Degree of Formality. More formality = More Laws (nod to Weber/Bureaucracies)

(5) Other Forms of Social Control:

BLACK

Primary Critique of Black

Definition of law doesnt match our definition.

We cannot quantify everything.

He made his dependent variable virtually unrecognizable by quantifying it.

HOLMES

Legal Realism

Law is whatever a Judge says it is

Judge makes all decisions regardless of what we want.

It doesnt matter how the judge basis his decision; the decisions is all that is relevant

EVERY judge is an activist- no such thing as a judge that isn't

HOLMES

Legal Realism

Terms

Judicial Activism: Judges trying to get things to happen, every judge is an activist for something. Their interests help us predict their decisions

Pragmatism: Americans contribution to law- We just want to know IF it works and HOW to fix not, we don't care HOW it works or WHY. Nature of law isnt important, only what the judge decides.

Precedent: Once we visit a legal issue and reach a decision, we dont need to revisit it again. Only binding if EXACT case with EXACT circumstances were duplicated.

KARL MARX'S THEORY

Capatalism and the Effects

Capatalism is when individuals own production (factories)

Under Capatalism you can NEVER be free; exploited in order to live

Capatalism makes it impossible to pay workers what they deserve because owners wouldnt make any profit. The harder the labor work, the more money the OWNER makes- not the laborers!

Effects:

* Nation divided into Rich & Poor

*Owners continue to get richer while poor struggles to survive in horid conditions

*Puts means of production in private hands- a few own it all

*Majority work and perform hard labor while only a few select get rich by sitting and doing nothing

*End Result: VASTLY different Socieo Economicc Statuses

KARL MARX

MARXISM

Occupations should be expressions of art and passion, but cannot be that way with Capatalism

Society SHOULD be one where you get what you NEED (food, shelter) when you need it, no questions asked

There would be no WANTS because everyone is too busy working (performing their passion)

If we shifted towards Marxism- everyone would have rights (medicine, food, ect) and the Proletariat would become universal class

KARL MARX

Fixing Problems of Capatalism

Marxian Point: The law is at the whims of the people in power. Explicitly, law is used by upper class against lower class. Not for PROTECTION but for OPPRESSION of the less fortunate.

Get rid of the entire capatalist system

Replace with Socialism (economics, not political) or Communism

We would then have moral and legal obligations to help others and expect the same help when needed

One problem: people would lose the motivation to keep working- we are drawn to things that pay, not what our passion is

KARL MARX

COMMUNIST UTOPIA

The Perfect Society (idealy)

Involves drawing social connecctions by the products we consume

All of the things we have grown used to "needing" are now second to other peoples essentials (food, medicine)

As we shift our consiousness from WANT to NEED- we stop caring so much about the extra, unneeded things.

Everything is held on an equal degree of art, therefore everything is beautiful and everyone benefits because things are being made from interest and passions which often results in perfection

However, this is impossible for our culture :( Our priorities arent where they ought to be

CHAMBLISS

Vagrancy Laws

Law is a Weapon, used to oppress

Vagrancy: orginally, it made it illegal to be found in public without proper proof of employment; then it shifted to being seud to capture runaway slaves

Labor Control -> Crime Control Device

Walfom Black Act: Made it illegal to be found in public wearing black

WALLERSTEIN

World Systems

United Nations was created with Atomic Bomb in mind

Made up of: General Assembly (212), Security Counsel (15), and the P-5 (U.S., U.K., France, Russia, China)

The P-5 Control Laws

WALLERSTEIN

Geneva Convention

The Rules of War

Changed POW status to Enemy Combatant: bypass U.S. prisons and take to Guatanamo Bay where person is not on US soil and constitutional protections do not apply in attempts to dodge American law

POW: applies to those who are wearing "recognizable military uniforms", in Cuba they aren't wearing uniforms because it is a guerilla war

CONLEY & O'BARR

Language and Power in the Courtroom

Uber Thesis: How you speak is more important than what you say

Sub Thesis 1: Language reflects and recreates culture

Sub Thesis 2: Language reflects and recreates culture & social hierarchies

Powerful vs. Powerless Speech: Hedges, limited vocabulary, grammar, hesitators, qualifiers, inflection, accents, tag questions

Relational: courts punishish people who are "bad"- women tend to believe this more than men

Rule-Oriented: understanding of what is needed in court; treat relationships and use of rules as backdrop

ELIZABETH LOFTUS

Eyewitness Testimonies

We only know what we REMEMBER, not what we actually saw. Our memory can be influenced by social factors

She found that you can fundamentally change who a person is by making them create their own memories and recollections in their head in which never really happened

Courtrooms currently view eyewitness accounts as the highest form of proof

False Memory Syndrome: remembering something inaccurately, however they arent lying because it really is inside of their memory

LOFTUS

Social Context of Memory

(Similar tactics used by cult and military boot camps)

(1) Physical and Social Isolation (take away surroundings that may trigger memories)

(2) New Social Ties (induce new relationships and cut loose the old ones, start fresh)

(3) Induce Mental or Physical Exhaustion (Sleep Deprivation)

(4) Use of Drugs (Hallucinogenics because the brain becomes unsure of what is real and what isn't)

All of these put together, you can get anyone to forget or remember just about anything.

GALANTER

Have's and Have-Not's

(Agrees with Conley & O'Barr)

He found that powerful entities overwhelmingly won their cases, the pattern had something to do with power. More money means better representation.

One Shotters: a.k.a Powerless, a.k.a HAVE NOT'S

Repeat Players: a.k.a Powerful, a.k.a HAVE'S

Why the HAVE'S come out ahead:

(1) Access to money

(2) Experience in the courtroom

(3) Expertise and Specialists

(4) Economics of Sale

(5) Informal Relationships with Legal Staff

(6) Credibility Bonus

(7) Playing the Odds; Minimize Mazimum Loss

(8) Rule Changes

SHERIF

Group Consensus

Held study on light vibration and asked individuals to respond in a group setting- respondents answers were influenced by the reponses of those around them- insecure to answer what they REALLY believe, instead they follow the group pattern.

Similar situation for group consensus is JURY VERDICTS

A strange phenomenon: Legal amateurs making the decisions

They provide and interesting power balance

Jury Nullification: Refers to juries ability to ignore a statute, juries decision is final. Not illegal in Oklahoma, but used rarely.

Randomly Selected? Those without drivers licenses or not registered to vote will not be selected

"Impartial" jury? The biases are split 50/50 after selection

It could better be describe as "Having two partial groups"

Our system is calld ADVERSARIAL SYSTEM

It's interesting that Juries are making the decisions but aren't allowed to ask any questions...

Jury Selection

Voir Dire

Voir Dire: "Speaking Truth". This section of jury selection is where the jury pool gets interrogated- ideally, it would be randomly selected but Voir Dire makes it a social process

Challenges for Cause: A person is found to not legally be able to serve on jury and is excused (Felons, non US Citizens)

Preemptory Challenge: A person cannot serve because of ANY reason- they can be dismissed for no reason at all as long as that reason isnt stated outloud because then it would be illegal (based entirely on stereotypes)

End Result of Voir Dire: Produces a bizarre group of people in the jury (not "peers" at all like stated in the Constitution) and the ones that were excused were actually the ones who would have the most interest in the case

JURY DUTY

Some Good News about Juries

People in a jury tend to take their job very seriously

Juries don't hear very many cases, only about 10%

Juries somehow tend to get the right answer (Judges sitting in audience agree with jury decision 99% of the time)

ASCH

How People Interpret Data based on Social Status & Hierarchy

Really interested in in how people stand up against group pressure

His study found that people are willing to state obvious wrong answers in fear of being singled out, or wrong (78% did this)

Juries are "small groups" so research done on small groups and group consensus apply to how we view juries

ASCH

Status Characteristic Theory (SCT)

SCT: theory about status based on characteristics; Inequality brought from outside of the courtroom into juries; those in dominance are white men and those at the bottom are black women

When groups form, an unconscious HIERARCHY is formed immediately. We would like to believe everyone is equal, but that is NOT how it really works.

We're given or taken away status based on our sex, age, raace, appearance, disabilities, ect.

ASCH

Status Characteristic Theory:

Breaking the Hierarchy

Task Competence: When a person possesses a characteristic which includes a skill found useful for the task at hand- one of the FEW things that can break the hierarchy. (i.e. a black old woman reveals that she is a retired judge- she immediately shoots up the hierarchy ladder)

Another way: When a powerful person at the top decides to ignore the rules of status and acknowledges the lower persons. (i.e. if the top dog turns to the lowest status person and asks for their opinion or advice, it automatically changes the others perceptions of the low status person bc they were shown respect from the highest person)

LAW SCHOOL

Functions of Law School

Manifest Function: Educate lawyers and give them standard legal training

Latent Function: Law becoming a true profession (Occupation where replaceability is limited) each year the limited number of spots available decrease. By llimiting law grads, they can eliminate competition and keep their salaries high and their statuses secure.

*Law school is actually a filtering process based on social characteristics

THE LSAT

Designed as a mechanism for leveling the playing field- it was created because favortism was being shown to ive-leauge graduates

It STILL isnt a level playing field, even though thats what its purpose is

There is a pattern to LSAT scores when ethnicity is controlled- it appear white people are the most intelligent, but in fact it is the test itself, not the people taking it.

LSAT scores do not predicts law school success bc the discrepancies by ethnicity are not related to level of success of individuals at the end of law school. IT IS NOT A PREDICTOR, so why do we use it?

KIDDER

LSAT SCORES

No correlation between LSAT scores and how well one does in law school

Matching: a technique used to look at each race at specific schools; they should be same, but they are not (Whites at Harvard score better than blacks at Harvard)

Scores have no relation to which school one attends; he tried matching based on major and still there were gaps

STEELE & ARONSON

Studying Standardized Tests

Found that Racial differences exist throughout ALL standardized tests

Affirmitive Action: Add 10 points to scores of minorities

Beliefs about racial group capabilities have an impact on individual performance! All racial differences evaporate if you tell participants that their intelligence IS NOT being graded

It isn't the race, it is the act of taking the test that proposes huge variances by race

Cultural Bias: when you give an exam, the answers that are expected depend on ones own knowledge and background

(1) Social Change

(2) Salary

(3) Stigma

Law School

Key Social Component

EMBARRASSMENT

Top: Corporate Law

Middle: Personal Law

Bottom: Government and Pro-Bono

LAW SCHOOL

Socratic Method

Type of teaching method used in law school- the idea is that you teach yourself.

Teachers teach students to connect the ideas in their head that are already there

Figure out questions to answers on your own

You're expected to know everything by the time you walk in the door

CORRECTION SYSTEM

Two Purposes

(1) Punishment

(2) Rehabilitation

GOFFMAN

Rehabilitation

and

Total Institutions

Rehabilitation doesn't work

Pprison is total institution and has characteristics which set it apart from other social settings

These differences include:

*Restricted movement

*Loss of control over mundane activites and day to day decisions

*Social interactions are structured and controlled (can't visit your mom or call a friend)

*Only interactions allowed are with other inmates or prison staff

Other Institutions with these Characteristics: Military boot camp, a monastery, and hospitals

GOFFMAN

TOTAL INSTITUTIONS

A Total Institution is a workplace that has human beings as the raw material and the product is also a human being.

Human --> Total Institution --> Human

Change must take place within the Total Institution for it to be effective

(i.e: sick people go to the hospital and come out healthy)

For a prison, the total institution works like this

Criminal --> Prison --> Non-criminal

Unfortunately, the people coming out of prison are not less likely to become a criminal again

GOFFMAN

Total Institutions:

Military Bootcamp

The most effective total institution

Why?

They take the physical body and transform it

Enstills a change of character from citizen to soldier

Total Institutions work on the "self" of people an change it however they want/need to

Mortification: removing the "old self" and killing it, replacing it with a "new self"

To have a successful Total Institutions, one must strip individual rights away

Total Institutions:

PRISONS

How Should We Change Prisons To Make Them More Effective?

(1) NO outside visitors whatsoever

(2) Do not let prisoners interact with one another, only staff and non criminals

(3) Isolate them from everything that supports their old sense of self

(4) Make them only talka bout the future, and not focus on the past

Rehab is impossible because prison systems do not allow for mortification

FOUCAULT

Correction System and our Social Lives

In old times, executions were done in public on a platform- Gruesome Public Spectacles

Under the guise of being humane, we've now removed punishment from public eye an no longer have spectacles.

However, there is a side effect to this- we can see the state exerting power over an individual, as well as the government commanding power over citizenry

Nowadays, we dont see punishment happen so we don't think about it.

FOUCAULT

Structure of Prisons

Surveillance is key and keeps people inside and behaving

Panopticon (all seeing): Guard tower in the middle, one-way glass, towers serves as guards- prisoners unsure if guard is watching or not.

The idea of surveillance is what gets people to self-monitor and have state power embedded unconsiously

Prisoners dont wan't to behave, it is occuring against their will, because of the threat of constant surveillance

The power is becoming invisible, guards dont even need to touch prisoners. Criminal Behavior is being managed by Supervision

This method works, but only if we take away the rights of individuals to make their own independent decisions- regardless of government power

FOUCAULT

The Psychology of the Nation

"The pervasive feeling you take with you everywhere you go, will fundamentally change the psychology of a nation- a society that behaves themselves but under notions that are barbaric- taking away their free will to behave how they choose - criminal, or not, some behaviors are socially embarrassing or unacceptable" - Foucault

New mindset to adopt: "Ah oh, I better behave, I am being watched!"

Equal Rights Amendment (ERA)

Failed in the 1970's

Would have explicity stated that men and women are equal in the constitution.

Failure of this amendment can be attributed to women's groups

Stay-at-home moms did not want it to pass!

MARTHA FINEMAN

Examining Divorce Law

The law recognized that marriage vows say the man will take care of the family so wehn they dissolve the marriage contract, the man should still have an obligation to take the kids- not the mother.

The courts balance out this power difference by making the man pay ALIMONY after the marriage dissolves

ALIMONY: a monetary payment from husband to wife because she is unable to support herself and the kids

Replacing Alimony with Child Support basically dooms the wife- thanks to women's groups, this is what we got..."equality"

Looking at Rape and Sexual Assault

BROWNMILLER: Studied the history of rape law and found it has a history of being a property law. Rape law is rooted explicitly in patriarchal ideas and women being the property of men.

TASLITZ: Discovered that patriarchy plays itself out within the courtroom. One being found guilty depends on the jury and the judges cultural ideas about sexual assault

We have society-wice assumptions when it comes to hearing of rape (night-time, strange attacker, dark alley)

A fully socially constructed crime

CONSENT is the legal componenet, without it, it is legally assault

By its legal definition, MOST of our society has committed rape: not clarifying consent and exchanging mutual interest

In a "real rape" the victim is struggling and screaming the entire time, if she doesnt then she appears "okay" with it.

In our society, it isn't right for females to be sexually explicit

Men like to think "Women want it (sex), they just dont want to or cant admit it"

Culturally, we require men to be sexually aggressive- taking the initiative

SEXUAL SCRIPTS

Between a man and a woman

From the point where a man and woman meet, and up until the moment they have sex (or dont) sexual scripts play themselves out predictivley

Some women tell a man NO when he offers, but she actually is thinking YES and later she finally gives in

Other women say NO and genuinely mean NO, however, men assume she isnt being honest and actually does want him...so the pursuit continues

The existence of several scripts is causing the problem with sexual assault because men will keep pushing even when the woman clearly states NO, in hopes that she really means YES

Resistance is expected and it makes men MORE interested

FLESTINER, ABEL, & SARAT

Every Argument is a Potential Court Case

9 billion cases A DAY in America are filed for disputes, 10 trillion a year

Think of it as a funnel, with ALL possible cases at the top wide rim and the VAST majority is withered out and the number gradually decreases

What keeps out the possible cases? SOCIAL FACTORS

A Successful Disputes involves 3 Things:

(1) Naming: identified a wrong

(2) Blaming: identified who is to blame

(3) Claiming: filing a complaint claim

Belief that there is always contradictions/conflict

Formalism: the law is rational and unbiased

Justice: MASSIVE power imbalance

Procedural and Outcome

Feminism is an opinion, not fact

Patriarchy is a fact, not an opinion

Feminism is a response to patriarchy; men run things- look at history and the economy- Men outnumber woman by a LOT