Umass Amherst - Legal Studies 250 Midterm
What is consistent with the legal frames proposed by Silbey and Ewick (2000)?
Americans embrace different views of the law and those views can change
Core of certainty/penumbra of doubt
Cases fall into two types of relationships to the rules that govern them, they are either in - The core of certainty (most cases fall here) - It's obvious that the rule applies - Penumbra of doubt (a small minority of cases) - it's not obvious that the rule applies.
Civil vs. criminal cases
Civil Goal: assess liability and damages, stop harmful conduct Parties: plaintiff vs. defendant Initiated by: the aggrieved party Evidence standard: preponderance of the evidence Verdict: liable or not liable Penalties: monetary compensation, stopping conduct (injunction) Criminal Goal: punish violations of the law Parties: state/prosecutor vs. defendant Initiated by: the state/prosecutor Evidence standard: beyond a reasonable doubt Verdict: guilty or not guilty
According to Harris and Sen (2019): ideology is
Closely related to race, class, and ethnicity
The power to tax and spend is an ____ power given to Congress. The power to create a bank is an ____ power given to Congress.
Enumerated/implied
If I had an attitude that I was "up against the law," what might that mean?
I have trouble playing by the law's rules I am likely to resist the law I have trouble maintaining distance from the law
Traditional natural law theory argues that we should not obey a law if that law is___________.
Immoral
Ewick and Silbey's legal frames
In the American culture law is both "God and gimmick", "sacred and profane" We are cynical yet optimistic and idealistic Precisely because we have these multiple frames of law and legality, law is able to maintain its dominance in our society and our lives
Gubernatorial Appointment
Judges are appointed by state's governor, which may or may not involve confirmation Typically appoint judges who share the governor's political party affiliation Patronage also at play Associated with more gender/racial diversity on the bench Positive: Diversifying Negative: Awarding people who have contributed money In line with appointing governor
Partisan Election
Judges run for election with party labels attached to them ~80% incumbency reelection rate Negative: Low voter turnout, less neutral
Judicial independence
Judicial Independence and Accountability at the Federal Level "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office." (Article III, Section 1) Removal of federal judges: House impeachment and Senate conviction, OR resignation
What is NOT true regarding judicial attack ads?
Judicial attack ads have been a part of state judicial elections since the founding of the United States
According to Butler:
Jurors in marijuana cases should vote "not guilty"
Austin's command theory of law
The command theory of sovereign (ruler) Backed by force or the threat of it Who is habitually obeyed Who does not habitually obey anyone else
Judicial accountability vs. independence
The extent to which judges are accountable to citizens in a democracy while also recognizing they should be independent and not feel pressure from the public
According to Martin Luther King, Jr., what is NOT one of the steps that must be taken before a person or group can justly disobey the law?
The filing of a lawsuit in state and federal courts
What is legality?
The meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who applies them or for what ends Exists everywhere, used for many purposes
Standing
The right to make a legal claim (for an individual, business, or other entity) or seek judicial enforcement of a duty or right
What is TRUE about petit juries?
They must be made up of citizens.
According to HLA Hart, rules of ____ empower people to create new primary rules and rules of ____ help people to know what rules are valid.
change/recognition
Assumptions of Natural Law
Natural Law is unchanging over time and does not differ in different societies Every person has access to the standards of natural law by the use of reason Only human laws in accordance with the natural law deserve to be called "law"
Locke
Natural Rights All men have the inherent right to life, liberty, and property The government should be designed to protect those rights If it doesn't, the people have a right to overthrow it
What justifications did Martin Luther King, Jr. use to defend his participation in the march and protest action in Birmingham in his letter?
No gains in civil rights were ever made without non-violent action. He had been invited by a local organization to help. They had tried to negotiate for changes, but the other side didn't hold up its side of the bargain. They had delayed the planned march many times already.
State judicial selection processes
No single system Many states use multiple systems Each system balances accountability and independence
Precedent (Stare Decisis)
Part of the common law legal system Referring to the previous decisions in order to adjudicate the case at hand if circumstances are similar
What is law?
Parts of legality that are employed by or attributed to formal institutions or its actors Exists in familiar places, used for particular purposes
When a state prevents a town or city from making laws in a particular issue area (for example, minimum wage laws), this is called:
Preemption
Hart's primary and secondary rules
Primary rules Rules that apply directly to citizens, often command to abstain from behavior Secondary rules Rules that govern the creation, amendment, and repeal of primary rules
What is true regarding the contemporary U.S. Supreme Court's public approval?
Public approval of the Court is at an historic low
According to Harris and Sen (2019): characteristics, such as ____, ______, and ______ can sometimes predict judicial decision making in limited kinds of cases
Race, ethnicity, and gender
State lawmaking
"Case or controversy" AND advisory opinions (MA. SJC only) Most criminal cases Most contract, probate (wills), tort (personal injury), and family (divorce, adoption, custody, etc.) cases Questions regarding state law and state constitutions
Federal lawmaking
"Case or controversy" requirement Any case regarding the constitutionality of the law Disputes between two or more states, or between citizens of two or more states Bankruptcy Admiralty law Cases involving U.S. laws and treaties Cases involving ambassadors and public ministers
8 Procedural Justices
1) Laws should be universal/general - Rules are always the same, it doesn't matter who you are or who you know 2) Laws should be transparent and promulgated - Need to know how laws are made - Need to be able to find laws 3) Laws should be understandable and clear 4) Laws are relatively stable throughout time 5) Laws should be administered as they are written 6) Laws should not be retroactive - Taking efforts from a date in the past - For example, criminalizing actions that were legal when committed 7) Laws should not contradict each other 8) Laws should not be impossible to comply with
Jurisdiction
A court's power to decide a case or issue Original (trial courts): The court can hear and decide the case first before any appellate review occurs Appellate (appeals courts): hear and review appeals from legal cases that have already been heard and ruled on in lower courts, made up of other judges, not a jury
Preemption
A legal doctrine that allows a higher level of government to limit or even. eliminate the power of a lower level of government to regulate a specific issue.
In the Letter from a Birmingham Jail, what was Martin Luther King, Jr. responding to?
A letter by white clergymen.
Example of legislature making law
Cannabis Power to regulate interstate commerce: 1970: Controlled Substances Act - Schedule I drug Banking regulations prevent banks from dealing with marijuana dispensary owners, even in states where it is legal
You should be able to make natural law arguments to support or oppose contemporary legal issues/debates.
Contemporary issues that invoke Natural Law argument Death penalty → violations of natural law Christian conservative legal movement Freedom of Church and State Prayer at school Abortion LGBTQ marriage
Hart argues that most cases fall into the ____ where it is clear that the law applies, while only a small number fall into the ____ where it is less clear
Core of certainty/Penumbra of doubt
What are some examples of proposals to reform the Supreme Court?
Create term limits for judges Increase the size of the Supreme Court Have judges participate in retention elections Create a mandatory retirement age for judges
According to Harris and Sen (2019), there is strong evidence that judges in the U.S.:
Decide cases consistent with their ideological preferences
The number of jury trials in the US has ____ in the past 20 years.
Decreased
Critiques of Austin
Difficulty distinguishing who/what is sovereign in a democracy Even in a monarchy, habitual obedience is not guaranteed Can't account for laws that regulate conduct between private individuals (contracts, wills, etc.) Just because you can command it, enforce it, have habitual obedience, and be above it doesn't mean it is a legitimate law
Example of courts making law
Double Jeopardy Double Jeopardy (Fifth Amendment) prohibits anyone from being prosecuted twice for substantially the same crime Gamble vs. United States (2019) Supreme Court authorized two prosecutions for the same crime, one in federal court and one in state court
Types of Administrative agencies
Executive agencies - Headed by Secretary - Appointed by President - All 15 together make up the President's Cabinet Independent agencies - Headed by commissions - Appointed by the President to fixed
True or false? Currently, all federal judges must be confirmed with 60 or more votes in the Senate.
False
True or false? During the jury selection process, peremptory challenges require the judge's approval.
False
True or false? In Fuller's story of King Rex, Rex writes a legal code that all of his subjects respect and follow.
False
True or false? Marijuana is legal in all 50 states.
False
True or false? In a retention election, two people run against each other for a judgeship.
False, judges run unopposed for office after they have served their initial appointments. The voter is asked simply to retain or reject the judge.
Supremacy Clause
Federal law takes precedent over state law Federal legislation sets minimum standards, states (and localities) can do more Example: minimum wage laws
This organization worked closely with the Trump Administration on the appointment of federal judges.
Federalist Society
Conservative Christian Legal Movement
Focused on training young lawyers to promote movement goals, which have a strong basis in natural law theory Ex. Reproductive freedom, prayer in schools, LGBTQ+ rights
According to John Austin's command theory of law, law is the command of a sovereign, backed by ____, and the sovereign is both habitually obeyed and does not habitually obey anyone else.
Force
How courts make laws
Gap-filling when the law is unclear Statutory interpretation Judicial review of decisions made by other parts of the government (laws, administrative agencies rules, executive orders, etc.) Setting precedents
Judicial review
How courts make decisions Judicial review of decisions made by other parts of the government (laws, administrative agencies rules, executive orders, etc.)
The case Safford Unified School District v. Redding is an example of how ______________ can matter in judicial decisionmaking.
Gender
A "runaway" jury describes the situation when a jury:
Gives an excessively large amount of damages in a civil case and make use of their right to act independently, and don't pay attention to the instructions of the court and prosecutor.
What judicial selection types is most likely to increase racial diversity on the bench?
Gubernatorial appointment
Pig-keeping in New York City
Hartog's Central Question: Did pig owners have a right to keep their pigs on the streets in the first half of the 19th century? Positivist Response: Not after People v. Harriet Legal Consciousness Response: It depends on who you ask Pigs remained on New York City streets until 1850 Laws were passed by the Common Council after 1819 and cases were decided by courts that assumed a right to keep pigs on streets in many areas and circumstances Pig keepers who kept their pigs on the streets didn't see themselves as breaking the law
In the movie Judgment at Nuremberg, what was the character Feldenstein convicted of and executed for doing?
Having a relationship with a German girl as a Jewish man
Early in the film, Judgement at Nuremberg, why does Ernst Janning challenge the authority of the tribunal to try him and the other judges?
He claims the American judges did not have the authority to try him and he can only be tried under German law
Rulemaking
How administrative agencies make laws How courts make laws Gap-filling when the law is unclear Statutory interpretation Judicial review of decisions made by other parts of the government (laws, administrative agencies rules, executive orders, etc.) Setting precedents
Is vs. Ought Dilemma
Just because something "is" doesn't mean it "ought" to be Just because a woman can bear children, doesn't mean she ought to Just because we can discover natural law, doesn't mean we ought to obey it
According to Martin Luther King, Jr., a _____ law is one that uplifts the human personality and creates feelings of superiority, a _____ law is one that degrades the human personality and creates feelings of inferiority.
Just/unjust
Fuller
Law as a system of governed by procedural principles Law is found in procedures The "Inner Morality" of Law Law is "the enterprise of subjecting human conduct to the governance of rules" The law guides human behavior toward some larger purpose, like justice
Aquinas
Law as the codification of transcendent moral principles, and is found in rules A just man-made law is... One that cultivates the common good Made by a lawmaker who has not exceeded his or her authority One whose burdens are imposed fairly on citizens "An unjust law is not law"
Natural Law
Law is always derived from some supra-human source, like God's will or morality
Assumptions of legal positivism
Law is known through the systematic observation of a given society The question of what law is is distinct from the question of what law ought to be A morally neutral description of law is possible and desirable
You should be able to make positive law arguments to support or oppose contemporary legal issues/debates.
Legal positivism (written law) Nuremberg trials (Nazi argument) Pro-abortion laws Hurting people in self-defense against the law LGBTQ+ marriage laws Drinking age laws Separation of church and state
Brett Kavanaugh's nomination to the Supreme Court was controversial because:
Limited release of documents from his time as counsel for the George W. Bush White House Sexual assault allegations from his time in high school and college Law review article he had written about whether sitting presidents should be indicted
Local lawmaking
Local governments can make local laws Local governments have the power to tax to provide services Examples: sewer, education, law enforcement
How legislatures make laws
Must cite enumerated or implied power to make a law Enumerated Powers (Article I of the Constitution) - To tax - To spend To regulate commerce among the states Powers implied by the Constitution To make laws that are "necessary and proper" to execute enumerated powers
Which of the following is a criticism of traditional natural law theory?
Morality is not the same in all times, places and cultures.
Throughout the world:
Most judges are term limited in some way, or have mandatory retirement ages
Intersectionality
Multiple overlapping identities can compound the injustices people experience Examples Black women, LGBTQ+ person with a disability, impoverished elderly man
Sources of Natural Law
Religious texts and divine revelation
Appointment of Amy Coney Barrett
Republicans refused to consider the appointment of Merrick Garland in 2016 based on the newly created "McConnell Rule" Scalia died almost 9 months before 2016 election Ginsburg died less than 2 months before 2020 election Republicans abandoned the rule to get Barrett on the Court Democrats tried to block Barrett's confirmation by denying quorum in Senate Judiciary Committee Barrett was confirmed by a 52-48 vote
The Supreme Court makes law by:
Reviewing the actions of other branches of government
How Administrative Agencies Make Laws
Rule Making Administrative Procedure Act (1946) Notice and comment period (30-60 days) Careful consideration of all comments Justification of decision with reasoned analysis Publish the final rule at least 30 days before it takes effect NO "arbitrary and capricious rules
Harts types of secondary rules
Rules of change - empower people to create new primary rules Rules of adjudication - Empower people to decide whether a primary rule has been broken Rules of recognition - Criteria to help officials decide which rules are part of a legal system and which are not
In their debate over the woman who informed on her husband in Nazi Germany, Lon Fuller says that the German court should have taken the natural law position and __________________, while HLA Hart says that the court should have taken the legal positivist solution and either ________________ or __________________.
Sent her to prison—she behaved immorally and should have known what she was doing was wrong Let her go—the law at the time said she did nothing wrong Passed a retroactive law and then punish her—even though this is bad for the legal system, it would give a legal basis for punishing her
Criticisms of Natural Law theory
Skepticism about the existence of universal moral principles or standards and our capacity to acquire them in a way that is not clouded by self-interest
Most criminal cases in the U.S. are heard by:
State courts
Traditional natural law theory says that you can see the morality of law in the ____ of the laws. Modern natural law theory says that you can see the morality of law in the ____ used to make the laws.
Substance/procedure
Federal judicial selection of judges process
Supreme Court Constitutional process President Nominates, Senate Confirms, Life Tenure, Maximizes Independence
Implied powers
To make laws that are "necessary and proper" to execute enumerated powers
Enumerated powers
To tax To spend To regulate commerce among the states
Which of the following is consistent with scientific jury selection (aka trial consulting)?
Trial consultants try to find a sympathetic jury It is done primarily by social scientists There are a variety of means to perform trial consulting
True or False? Most federal judges first get their judgeships through appointments.
True
True or false? A federal judge can only be removed through impeachment (and conviction), retirement, resignation, or death.
True
True or false? The agency in charge of fisheries monitoring requires that commercial fishing boats must pay to host a federal monitor on their boats:
True
True or false?You can be prosecuted for the same crime under both state law and federal law.
True
Umpire vs. activist
Umpire: judges just apply the rules Activist: judges exhibit empathy, allow their personal experiences to shape their decisions
Example of administrative agencies making law
Vaping Congress authorized the FDA to regulate "tobacco products" FDA conducts hearings weighing the benefits of vaping devices for smoking cessation for adults versus their potential harm to young people Recently denied applications for almost 1 million flavored vaping products
What is an example of Congress passing a law using its power to spend?
Withholding federal highway money from states to get them to make seatbelts mandatory.
"With the Law" is referring to when people
View law as a game of skill, deceit, manipulation, and resources, high accessibility to ordinary people Empowerment - The "haves" (those with a great deal of resources) - People who take pleasure in playing the game Disempowerment - The belief that you will lose if you do not have the resources keeps people from accessing or using the law in the first place
"Against the Law" is referring to when people
View the law as a product of unequal power, arbitrary and capricious, and an oppressive force, low accessibility to ordinary people Empowerment - Masquerading - Feelings of claiming rights and a sense of justice Disempowerment - People engage this way because they have few resources and little faith that they can stand before the law and receive a fair outcome
"Before the Law" is referring to when people
View the law as majestic, removed from ordinary life, authoritative and predictable, with low accessibility to ordinary people Empowerment - Rita Michael's divorce story Disempowerment - Beliefs about when it is appropriate to use law means that people will not use it or will vilify those who use it inappropriately
