Term
| Where do lawyers practice? |
|
Definition
private practice
government
private employment
judiciary |
|
|
Term
| The law is a learned profession: true/false? |
|
Definition
|
|
Term
| What is professionalization? |
|
Definition
An attempt to translate one type of resources into another
Specialized knowledge and skills that becomes social and economic reward |
|
|
Term
|
Definition
the successful assertion of unchallenged authority over some area of knowledge and its professional instrumentation
- Until the body of knowledge became too much for the ordinary person to handle, there was no need for a legal profession |
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Term
| To become a profession what must a discipline do? |
|
Definition
Become a full-time occupation
Have established training schools
- University affiliation of training schools
Local professional associations must started
National professional associations evolved
State licensing laws must exist
Formal codes of ethics must be established |
|
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Term
| How do professionals answer ethical questions? |
|
Definition
|
|
Term
| Generally, professionals want what two things? |
|
Definition
To be changed and take on the attributes of the profession
To keep previous selves intact
- Profession as an addition to their lives |
|
|
Term
| Lawyers in primitive societies |
|
Definition
did not exist
- judges and courts were temporary |
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Term
| The development of the legal profession has been intimately connected with what? |
|
Definition
| The rise of legal systems |
|
|
Term
| In the 1200's what profession emerged? |
|
Definition
| Advocate: a regulated group of law practitioners with some formal training. |
|
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Term
| Where were the first lawyers trained? |
|
Definition
By judges in the courtroom.
Then training moved out of the courtroom to the inn's of the court (england)
- Members of the Inns became organized, and monopolized the training of lawyers |
|
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Term
| The american legal profession: pre-revolution |
|
Definition
- Law was practiced by the upper class
- Wealthy sent their sons to the Inns of Courts
- Lawyers were unpopular |
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|
Term
| The american legal profession during the revolution |
|
Definition
| Many lawyers emigrated to England |
|
|
Term
| The american legal profession post-revolution |
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Definition
| Legal profession became more egalitarian |
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Term
| First law schools established 1770's-1780's |
|
Definition
- Grew out of a specialized law office offering an apprenticeship program
- Fourteen month program – no diploma
- Taught by lecture method
- Lax oral exam was maybe required |
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|
Term
| In 1870 the teaching of law began with what method? |
|
Definition
|
|
Term
| Law school standards changed |
|
Definition
- Admission standards tightened
- The length of time required to graduate was increased
- Oral examinations exchanged for comprehensive written exams
-College degree was required for admission (1876) |
|
|
Term
| What are law schools to the legal profession? |
|
Definition
|
|
Term
| In almost every state, what is required for admission to the bar? |
|
Definition
A law school education
Seven states have provisions for ‘reading law programs’
- Like apprenticeship programs
- The ABA opposes these programs and restricts practice of these lawyers to their home state |
|
|
Term
| Enrollment in 1963/4 compared to enrollment in 2003/4 |
|
Definition
63/4- 49,552
03/4- 145,088 |
|
|
Term
|
Definition
| Historically dominated by students who are from better educated, more affluent, white families (1970's) |
|
|
Term
| The socratic method (1870 Langdell) |
|
Definition
Law was a general science and its principles could be experimentally induced from the examination of case materials
Casebooks became textbooks |
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Term
| The socratic method generally involves an intensive interrogation by the teacher of individual students concerning what? |
|
Definition
| The facts and principles presumed to be operative in a particular case |
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Term
| What is the socratic method's twofold objective? |
|
Definition
Informational: Instruction in the rules of law
To help students “think like a lawyer”
- Not only trains students to account for the factual details, but also the legal issues at the core of the dispute
- Allows students to make intelligent predictions of what a court would do |
|
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Term
| What are some strengths of the socratic method? |
|
Definition
Large class sizes are possible
Requires a student to prepare for class and learn the material
Focuses the student’s attention on subtleties and provides a good background for logical reasoning |
|
|
Term
| What are some criticisms of the socratic method? |
|
Definition
- Class environment considered a hostile environment
- Creates an intense emotional environment
- Students complain that the method is inconclusive, does not encourage creativeness, and is not intellectually stimulating
- Men seem to fair better than women |
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Term
| What is the definition of professional socialization? |
|
Definition
| taking on professional attitudes and identity |
|
|
Term
| What does professional socialization teach students to do? |
|
Definition
define problems within the framework of the current system
- Makes students intellectually independent
- Restrains them from looking for radically solutions |
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Term
| Professional socialization indoctrinates students into what? |
|
Definition
Indoctrinating students into the legal profession
- Questions that challenge the basis of the system are seldom raised |
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Term
| Professional socialization moves students away/towards which views? |
|
Definition
Moves students away from the view that law is about social change
Moves students toward the view that the law is solely a conflict resolution mechanism |
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Term
| In response to criticisms what have law school programs done? |
|
Definition
- Adopted more joint degree programs
- Included a “clinical” training portion
-- Learning how to “work like a lawyer”
-- Places students in real situations with criminal defense offices or poverty-related neighborhood legal aid offices
-- Helps students deal with clients, judges and juries
-- More expensive than traditional legal education |
|
|
Term
| What happened in 1750 regarding professional organizations? |
|
Definition
Bar associations developed as social clubs
Gradually controlled the admission to practice
Courts also admitted people to the bar |
|
|
Term
| What happened to professional organizations post-revolution? (1800-1870) |
|
Definition
Admission standards loosened
Bar associations crumbled
Local courts granted admission to practice |
|
|
Term
| What happened to professional organizations in the 1870's? |
|
Definition
Lawyers’ Union developed
- Wanted to protect the boundaries of the profession
ABA formed in 1878
- Statewide boards were established |
|
|
Term
|
Definition
Response to need
Governs:
The quality of legal education, requirements for admittance to the bar, power of the bar association, etc. |
|
|
Term
|
Definition
Guidelines for dealing with clients, other lawyers, the court, and the public
Language is generally much stronger than the ethical guidelines for other professional associations
- Ethical questions that relate to the role of the attorney
-- Necessitated by the adversarial system |
|
|
Term
What are the 4 principle subgroups in the legal profession?
(from biggest to smallest) |
|
Definition
- Private practice
- Government
- Private industry
- Judiciary, education, etc. |
|
|
Term
| Significant roles of private practice |
|
Definition
- Counseling
- Negotiating
- Drafting
- Litigating
- Investigating
- Researching |
|
|
Term
| Counseling in private practice |
|
Definition
| Course of action in anticipation of the court or agency |
|
|
Term
| Negotiating in private practice |
|
Definition
| Criminal and civil cases, plea bargaining |
|
|
Term
| Drafting in private practice |
|
Definition
Writing and revising legal documents
Contracts, wills, deeds, leases |
|
|
Term
| Litigation in private practice |
|
Definition
Few lawyers engage in trial work
Much litigation is uncontested
Debt, divorce, civil commitment, criminal charges |
|
|
Term
| Investigating in private practice |
|
Definition
| searching for the facts of a case |
|
|
Term
| Researching in private practice |
|
Definition
| Searching for precedents, adapting legal doctrine to specific cases, anticipating court or agency rulings |
|
|
Term
| What are the possibilities in private practice? |
|
Definition
Solo practitioners
Big law firms
Partnerships, small law firms |
|
|
Term
|
Definition
| generalists or "jack of all trades" |
|
|
Term
| What do solo practitioners deal with? |
|
Definition
- collections
- personal injury cases
- rent cases
- evictions |
|
|
Term
| Studies show that solo practitioners are most likely to violate what? |
|
Definition
Ethical norms
- Soliciting kickbacks, making/arranging police payoffs
- Function of the type of case and individuality of the client |
|
|
Term
| What kind of status does a solo practitioner have in terms of professions? |
|
Definition
|
|
Term
| What are the biggest determinants of whether a lawyer becomes a solo practitioner or joins a law firm? |
|
Definition
| Social background combined with the quality of the law school |
|
|
Term
| What are big law firms referred to as? |
|
Definition
|
|
Term
| Who are big law firms dominated by and what kind of clients do they favor? |
|
Definition
Dominated by white men (slowly changing)
Favor corporate clients |
|
|
Term
| What is the hierarchical organization of a big law firm? |
|
Definition
Associates -fixed salary
Junior partners
Full partner |
|
|
Term
| Big law firms are recruiting centers for what? |
|
Definition
High level government service
- Looked upon as post graduate school training |
|
|
Term
| Most lawyers don’t change from big firm to private practice or vise versa, what is this separated by? |
|
Definition
- Social origins of the lawyers
- Law schools attended
- Types of clients they serve
- Frequency and type of litigation
- Different circles of acquaintance |
|
|
Term
| The hierarchy of lawyers suggests a corresponding stratification of law into what two systems of justice? |
|
Definition
Individuals and small businesses vs. corporate
Wealthy vs. poor |
|
|
Term
| What are ways to generate income in a private practice? |
|
Definition
- Charging by the hour (large range)
- Estate, mergers, and probate
- Contingency fee basis |
|
|
Term
| Private practice: charging by the hour |
|
Definition
Using a heavy pen
Double billing |
|
|
Term
| Private practice: estate, mergers, and probate |
|
Definition
| percentage of the worth of the transaction |
|
|
Term
| Private practice: contingency fee basis |
|
Definition
| an arrangement where the lawyer receives a percentage of any damages collected |
|
|
Term
| What are the pro's, con's, and remedies of contingency fee basis? |
|
Definition
- Pros: allows individuals to retain the services of an attorney who could not otherwise afford it, helps lawyers screen out weak cases
- Cons: motivates lawyers to seek high damages
- Remedies: cap fees given to attorneys |
|
|
Term
| The majority of government lawyers serve where? |
|
Definition
| In the legal departments of federal and state agencies |
|
|
Term
| What are some departments of federal and state agencies? |
|
Definition
- Justice and Treasury Departments
- City Departments: Zoning, planning, etc.
- Public Defenders and Prosecutors
-- Federal prosecutor, US attorneys, and assistants: appointed by the President
-- State prosecutors: elected by each county |
|
|
Term
| Where does a small portion of the government lawyers work? |
|
Definition
| In high executive positions, elected politicians |
|
|
Term
| How is taking positions in government a strategy for upward mobility? |
|
Definition
- Segue into prestigious private practice
- Gain valuable experience
- Most are recent law school graduates
- Limitations on top salaries discourage some from continuing |
|
|
Term
| What are private industry lawyers? |
|
Definition
Salaried employees of private businesses
- Industrial corporations, insurance companies, banks |
|
|
Term
| How do private industry lawyers increase their growth? |
|
Definition
The growth of corporations
Increasing complexity of business
Problems with government regulation |
|
|
Term
| Private industry lawyers generally don't deal what what? |
|
Definition
litigation
- Most tend to stay in private employment – some mobility between government and private employment |
|
|
Term
| What percentages of lawyers are in each field? |
|
Definition
Private practice: 74%
Government: 12%
Private industry: 12%
Judiciary, education, etc: 2% |
|
|
Term
| Judiciary and education lawyers |
|
Definition
- Judges and educators
- Very small proportion of lawyers
- Drawn from the practicing bar, researchers, government service, and teaching |
|
|
Term
|
Definition
Trial by ordeal
Origin of the jury can be traced back to the old Anglo-Saxon law in England |
|
|
Term
| Juries originally made accusations on behalf of what? |
|
Definition
|
|
Term
| What led to the opening for a jury to take part in a trial by ordeal? |
|
Definition
| The Church forbade the clergy from taking part in trial by ordeal |
|
|
Term
| What did juries eventually evolve into? |
|
Definition
Adjudicators
- Transformation coupled with the Enlightenment philosophy |
|
|
Term
| Juries came to america with british settlers (1607) |
|
Definition
Referred to in three of the first ten amendments
80% of all jury trials take place in the US |
|
|
Term
| The jury was included in the Declaration and Bill of Rights as a protection against what? |
|
Definition
|
|
Term
| What did the First Continental Congress say about trials before judges? |
|
Definition
| objected to trials before judges that were dependent upon the Crown for their salaries |
|
|
Term
| What does the Constitution and Bill of Rights guarantee? |
|
Definition
The right to a trial by an impartial jury of one’s peers
- States adopted these standards |
|
|
Term
| What is the guarantee of a jury trial? |
|
Definition
A protection from oppression by the government
A reflection of our beliefs about the exercise of official power |
|
|
Term
| Constitution provides the right to a trial by jury for all criminal cases and civil cases involving what? |
|
Definition
|
|
Term
| Juries render verdicts in how many cases? |
|
Definition
Fewer than 10%
- ¼ to ½ of all cases that go before a jury are settled out of court |
|
|
Term
| How many people are called for jury duty annually? |
|
Definition
3 million
- less than 60% serve |
|
|
Term
| In criminal cases, who gets to decide whether the case will be heard by a jury or a judge? |
|
Definition
| the defendant usually gets to decide |
|
|
Term
| Juries are ALWAYS used in which cases? |
|
Definition
Death penalty cases
- Unanimous decision of a jury of 12
- Sentencing in Florida |
|
|
Term
| Jurors are used predominantly in which courts? |
|
Definition
|
|
Term
| Functions of juries: issues of fact |
|
Definition
Interpreting and deciding between competing and conflicting interpretations of events
Referee in an adversary contest |
|
|
Term
| Functions of juries: issues of law |
|
Definition
| Legitimizing behavior under the law |
|
|
Term
| Functions of juries: injects community sentiment |
|
Definition
| Acts as a check on our justice system |
|
|
Term
| de Tocqueville framed trial by jury in which two ways? |
|
Definition
Judicial
Political institution |
|
|
Term
|
Definition
Places the direction of society in the hands of the governed
- Raises citizens to the “bench of judges”
- The execution of the laws is entrusted to common citizens
Further evidenced by the jury’s involvement in civil justice
- Raises the visibility of the jury
- Teaches people to practice equity |
|
|
Term
| Jury nullification definition |
|
Definition
| The right of juries to nullify or refuse to apply law in criminal cases despite facts that leave no reasonable doubt that the law was violated. |
|
|
Term
| Jury nullification: Zenger case (1735) |
|
Definition
| Jurors have the right beyond all dispute to determine both the law and the facts, and where they do not doubt of the law, they ought to do so |
|
|
Term
| History of jury nullification |
|
Definition
Navigational acts
Jury nullification became an integral part of the justice system
- Juries are called to evaluate both questions of fact and of law |
|
|
Term
| Why do we give jurors the right to nullify? |
|
Definition
- Exercise of discretion in the administration of law and justice
- Check on prosecutorial indiscretion
- The “Great Corrective” in the administration of law
-- Gives the judicial system a legitimacy it would not otherwise posses |
|
|
Term
"Man (or woman) in the jury box" formation of public policy
* “The execution of the law is more important than the making of them” –Jefferson |
|
Definition
- One of the most significant principles of a democracy
- Embodiment of the conscience of the community
-- Informs us about the values of a society
- Control over policymakers
- Involvement with the government
-- Legitimizes the government/law |
|
|
Term
| Are jurors told about their power to nullify? |
|
Definition
|
|
Term
| In some states jurors are specifically told what? |
|
Definition
| That they must follow the law whether they agree with it or not |
|
|
Term
Why are juries not told about their right to nullify?
United States v. Dougherty et al. |
|
Definition
Jury nullification co-exists with the legal practice of telling the jury they must follow the law
The way the jury operates may be radically changed by telling them of the option to nullify |
|
|
Term
| United States v. Dougherty et al. |
|
Definition
- Encouraging anarchy
- Subtle/informal communication that conveys this right
- May put untoward strains on the jurors
- Must be so extreme of a disagreement that they feel it their duty to go against the law |
|
|
Term
| What happens when we tell a jury about the right to nullify? |
|
Definition
jurors are more likely to acquit a sympathetic defendant
and less likely to acquit a culpable, dangerous defendant |
|
|
Term
| What are some abuses of nullification? |
|
Definition
- Nullification must always be used to acquit
- Acquittal by bigoted juries of whites who committed crimes against blacks
- Partially fueled the civil rights movement
- Right to be tried by a jury selected without bias |
|
|
Term
|
Definition
- Discretion: the use of judgments about the circumstances of certain offenses that lead to appropriate variations in how the system responds to these offenses.
- Equality: The same consequences for all people who commit the same crime |
|
|
Term
| Discretion can be used at which stages of criminal prosecution? |
|
Definition
ALL stages.
- Legal professionals have several courses of action available to them |
|
|
Term
|
Definition
- Opposite of routine
- Brings knowledge, skill and insight to bear in unpredictable ways
- Adapting rules to local circumstances |
|
|
Term
|
Definition
Making personal contributions or judgment calls
Following your conscious |
|
|
Term
| Discretion as discernment |
|
Definition
- Not just about making “safe” choices
- Making good virtuous choices
- Tolerance, empathy |
|
|
Term
|
Definition
| Permission to act as a free and equal agent |
|
|
Term
|
Definition
The opposite of standard expectations
Privilege to go against the rules |
|
|
Term
| Is discretion doing as you please? |
|
Definition
|
|
Term
| Police discretion: law enforcement agencies principle functions |
|
Definition
- law enforcement
- maintenance of order
- community service |
|
|
Term
| What are the five (informal) types of Public Law Enforcement Systems? |
|
Definition
- Federal Government
- State Police & criminal investigation agencies of the 50 States
- Sheriffs in more than 3000 counties
- City Police officers
- Village/Boroughs/Town police officers |
|
|
Term
|
Definition
| Cost almost more than 3 times public police |
|
|
Term
| Most police departments are characterized by what? |
|
Definition
| a formal and highly complex division of labor |
|
|
Term
| Most police departments rely on what? |
|
Definition
- Rules and regulations
- High degree of cohesion and solidarity
- Authoritarian character
- Code of silence |
|
|
Term
| Most police departments are built on what? |
|
Definition
- Military-like organization
- A subordinating chain of command
Functional divisions follow the kinds of activities they handle
- ex. traffic patrol, investigative work, crowd control, uniformed patrol, etc. |
|
|
Term
|
Definition
Use of arrest and alternative uses of arrest
- Control and harass, Street Sweeps, ex. demonstrators
Decision not to arrest
Deciding on the level of priority to give to each of their functions, ex. Investigations, complaints, etc.
Situational: whether to use force
The option to enforce, interrogate, confront, etc. |
|
|
Term
| Why would police choose not to arrest? |
|
Definition
- Police believe the community wants lenient or lax enforcement
- Police believe other duties are more urgent or important
- Not arresting may serve another need, ex. Informants, backup |
|
|
Term
| What influences whether a police officer is likely to excersize discretion? |
|
Definition
Offender variables
- Adults vs. juveniles, race, gender, mental health
Situation variables
- Criminal vs. other matters, presence of weapons, type of property, initiator, others present
System variables
- Court availability, quotas, community resources |
|
|
Term
|
Definition
Watchman
Legalistic
Service
- Elements of all three can be found in any agency
- Overall, emphasis tends to be on one style |
|
|
Term
|
Definition
Emphasizes responsibility for maintaining public order
Peace officer
- Great amount of discretion
- Handles many violations informally
Often characterized by corruption, under enforcement, and low arrest rates
Largest amount of discretion used |
|
|
Term
|
Definition
Opposite of Watchman style
Treats all situations as if they were serious infractions of the law
High rate of traffic tickets, arrests, etc.
Technically efficient
Complaints of harassment and police brutality
Least amount of discretion used |
|
|
Term
|
Definition
Combines law enforcement and maintenance of order
Emphasizes community relations
Fewer arrests for minor infractions
Less arbitrary than watchman style, more attuned to the public than the legalistic style.
May include a community policing element
Focuses attention on the problems that lie behind incidents rather than just the incidents
More expensive and labor intensive
Moderate amount of discretion used |
|
|
Term
|
Definition
negotiations between the prosecutor and defendant’s lawyer; may involve ‘trading’ with the defendant for admission of a lesser crime
- 10% of cases that are filed go to trial |
|
|
Term
|
Definition
- Caseloads, case weaknesses, desire for a more lenient sentence
- Plea bargaining is a “cheap” conviction
- Criminal justice is becoming administrative vs. adversarial |
|
|
Term
| Hate crimes must start at what level? |
|
Definition
| The policing level and be supported through prosecution |
|
|
Term
|
Definition
| The majority of juveniles waived to adult court are black, although they are not the majority who are committing crimes |
|
|
Term
|
Definition
Traditionally middle or upper class
History of Party identification
Almost all started as lawyers |
|
|
Term
| How do judges become judges? |
|
Definition
Federal Judges: nominated by the president, confirmed by the senate
State and local judges: variety of methods (election, appointed, combination) |
|
|
Term
|
Definition
- Interprets the rules that govern the proceeding
- Controls the flow of litigation in the courtroom
- Has discretionary power in proceedings |
|
|
Term
| How do judges regulate court proceedings? |
|
Definition
Discretion to allow evidence
Bifurcation
Instruction
Special verdicts
Regulates the jury
May sentence upon a guilty verdict |
|
|
Term
|
Definition
| varies from state to state |
|
|
Term
| What plays a role in judicial sentencing? |
|
Definition
Precedents
Prosecution recommendation
Victim Impact Statements
Race, sex, age, socioeconomic and criminal background of the defendant
New laws
- Three strikes, mandatory minimums
- Sentencing reform act (1987)
-- Ranked crimes, aggravating and mitigating circumstances |
|
|
Term
| The queen v. dudley and stephens |
|
Definition
Dudley and Stephens pleaded Not guilty by reason of self defense: they had to eat the boy in order to stay alive.
Coleridge decided that self defense doesn’t fly and finds them guilty.
Says they should have done something else in order to pick who was the one to die.
To help Dudley and Stephens to escape the death penalty Coleridge appealed to the queen asking her to commute the sentence to 6 months. |
|
|
Term
| Exploding prison populations are not the result of an increase in crime, but a result of what? |
|
Definition
|
|
Term
| The unwanted effects of the three-strikes laws and mandatory minimums |
|
Definition
The laws were promoted based on protecting the public from violent, serious offenders
Instead, they have confined higher rates of non-violent offenders |
|
|
