politics of law
Critical Legal Studies
"A school of thought advancing the idea that the legal system's manipulative nature masks its true function which is to perpetuate the socio-economic status quo."- sometimes thought as revolutionary movement seeks to expose law as not rational, and only makes possible an unjust political system. (Crits or CLS)
Duncan Kennedy
"Are Lawyers Really Necessary"
Fighting words
"Inflammatory speech that might not be protected by the First Amendment because it might incite a violent response."
Virginia statute
"It shall be unlawful for any person or persons, with intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who all violate any provision of this section shall be guilty of a Class 6 felony."
St. Paul Ordinance
"Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."
Stare Decisis
"let the decision stand"; courts follow earlier judicial decisions when certain points rise again in litigation.
natural law arguments in Letter to a Birmingham Jail
"we have waited 340 years for our constitutional and god-given rights." "How can you advocate breaking some laws and obeying others." "An unjust law is no law at all." "
Wisconsin v. Mitchell facts
- On October 7, 1989, a group of young African men had been drinking alcohol and watching the movie Mississippi Burning in Kenosha, Wisconsin. - a 14 year old white boy, Gregory Reddick, happened to be walking across the other side of the street. Todd Mitchell, one of the men, asked his friends, "Do you all feel hyped up to move on some white people?" He then pointed at Reddick and said, "There goes a white boy. Go get him!!"
Lochner v. New York- Holmes's dissent
- didnt care whether it was a health law or not. What if there was no limit on police powers in U.S. constitution? - alot of situations where liberty of citizen to do as he likes is infringed upon. -the law was an experiment in peaceful evolution. It did not trouble him that society might adopt tyrannical laws. Holmes believed that judges who claim to find fundamental principles in the constitution are merely given credent to their own personal political beliefs.
rule of law
- doctrine that every person, no matter their importance of social standing, is subject to the ordinary law of a jurisdiction. - the supremacy of regular as opposed to arbitrary power;
How napoleonic code was a step to "rule of law"
- forbade birth-right privleges and exemptions - laws had to be properly enacted and had to be published so that population was aware of them before they were enforced. - prohibited ex post facto laws. - allowed religious freedom - gave judges, who were seen as part of aristocracy, less discretion.
Legal Realism
- legal theory that developed in the first part of the 20th century. - Extremely active from the 1920s through the 1940s. -all law made by humans and subject to imperfections. - Some proponents believe that a decision may be determined by what the judge had for breakfast.
positive law
- man made law
Crits History
-came from legal realism in 1977. - Grew out of legal academia who had been part of Civil Rights Movement, Women's Movement, and the anti-Vietnam War Movement. Major proponents include Duncan Kennedy and Catherine Mackinnon.
Natural law
-legal theory - law whose content is set by nature, universan, and not man-made. - set forth by God or code of morals. -aristotle considered Father of Natural law -major proponents- MLK jr., St. Augustine, St. Thomas Aquinas, Thomas Jefferson
Common Law
-originated in England in the Middle Ages, exist in the United Kingdom and its former colonies. -uncodified, meaning there is no comprehensive compilation of legal rules or statutes. Heavily reliant on precedent (Decided case becomes determining case in later cases; recorded by case reporters &court records) - judge's decide which case precedent applies to particular cases *Stare Decisis*
sociological jurisprudence- 3 step process to law:
1. study of "social facts" of American society was required as a step to make appropriate law; - laws purposes is to serve community needs and wants. 2. analyze social effects of legal rules; -legal rules should be considered from the point of view of how they function. 3. every legal case requires individualized consideration due to the diverse circumstances of each dispute. - law should not be based on strictly drawn rules, but more ambiguous standards like "good faith" and reasonableness.
2 questions asked by positivists to assess the validity
1. was the law created by the correct authority 2. did the correct authority follow the appropriate procedures. if yes to both law is valid
Lochner dissenting opinions
2 opinions- Harlan, J joined by justices White and Day. - valid exercise of police powers by NY. -Majority didnt give enough credit to the fact that the profession of a baker was an unhealty on and that NY sought to keep citizens healthy.
Napoleonic code
4 parts laws regarding persons; laws regarding property; laws regarding the acquisition of property; civil procedure major step towards "rule of law" in france.
Letter from a Birmingham Jail
A letter written by Martin Luther King Jr. after he had been arrested when he took part in a nonviolent march against segregation. - White alabama clergymen called him an outsider and said that he didnt handle it properly.
Incorporation
Application of the Bill of Rights to the State government's through the due process clause of the 14th amendment
Crits
Attempt to debunk theories that law is neutral, objective or determinate. -like legal realism, shares the idea that judicial opinions depend largely on the predilections and social situation of the judge
Defendant in Nix v. hedden
Collector of Customs of the Port of New York. Federal officer tasked with collecting import duties on foreign goods
Legal systems
Common law and Civil law
Lochner Breakdown
Constitutional- 3 NY appeals court 4- NY supreme court 3- U.S. supreme court = 10 judges unconstitutional- 2- NY appeals court 3- NY supreme court 5- U.S. supreme court
holding
Court's determination of a matter of law based on the issue presented to the Court.
Prima facie evidence
Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced. - "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."
Muller v. Oregon
Facts: - Curt Muller was a laundry owner in Portland, Oregon. - Muller made his woman workers work longer than 10 hours in a single day and was charged and convicted in the State of Oregon. He was fined $10. He took his case to the Oregon Supreme Court and then to the United States Supreme Court. ISSUES- unconstitutional "liberty to contract" HOLDING- no REASONING- Differences in the sexes make this case different and thus, women do not have the same 'liberty of contract' rights as men. Concurring/Dissenting Opinion- None.
fighting words relevant to Ch. v. N.H.
Fighting words are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as to step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality.
Article I, Section 9, Clause 3, and Article I, section 10, Clause 1, of the United States Constitution
Forbid the enactment of ex post facto laws. Law that is done or made after the fact.
Pantiff in Nix v. hedden
Four men with the last name Nix, who were required to pay tax on tomatoes
lochner v. new york stuff
Instead of paying the fine this time, he appealed his conviction on the basis that the 14th amendment to the United States Constitution protected his liberty to contract. Holding: First court to hear the appeal was the Appellate Division of the New York Supreme Court, and in a 3-2 vote, that court held that the 'liberty to contract' was subservient to the public's right to regulate health. Lochner loses. Lochner appeals to the New York Court of Appeals, where he loses again in a 4-3 opinion. U.S. supreme court holding- 5-4, decided it was a labor law not a health law, therefor couldnt tell grown intelligent men to limit their hours
Calder V. Bull
Issue- is conn. law violation of U.S. constitution bc it violates ex post facto holding- no reasoning- court drew a distinction between ex post facto laws that are criminal and those that are civil or "private. concurring/dissenting- all concur, but for diff. reasons. no dissent. personal impressions? right decision?
Virginia v. black dissenting
Justice Thomas, dissenting. "[T]his statute prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point." Believes that cross-burning should be a First Amendment exception.
Judicial activism
Legal philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.
Judicial Restraint
Legal philosophy whereby judges should defer to the Legislature about matters of public policy
What did Minnesota supreme court do?
Limited the reach of the statute to prohibit only "fighting words," in an attempt to save it from the overbroad and content based problems
W. v. M happenings
Mitchell = charged, tried, and convicted of aggravated battery based on hate- crime enhancement law , "intentionally selects the person against whom the crime is committed because of the race, religion, color, disability, sexual orientation, national origin, or ancestry of that person."
Virginia v. Black facts
On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. Around 30 people attended the rally, that was held on private property, with permission of the owner who was also present - sherriff went to side of the road to observe. - elliott burned cross in Jubilee's yard to get back at jubilee for talking to elliot's mom about gunshots.
appellate court level
Petitioner - party appealing the previous court's decision Respondent - person prevailing in the previous court, defending against appeal.
Trial court level
Plaintiff - a party who initiates a lawsuit. Defendant - the party defending against a lawsuit.
Nix V. Hedden
Plaintiffs (Nix) want the Defendant (Tax Collector) to reimburse them for the taxes he was forced to pay on tomatoes and that the Court order that tomatoes are a fruit, not a vegetable, and thus not taxable.
criticisms of positivism
Positivism fails to explain how proper authority decides which law to enact; positivim's rigidness causes harsh results; - can law really be whatever the legislature says it is without regard to morality? nazi germany
how to brief a case
READ opinion atleast once to understand what you're reading. IDENTIFY case name, court name, and date of decision Statement Of Facts- parties, facts, what happened before parties entered legal system? what is plaintiff alleging defendant violated? what's plaintiff want? Whats defendant arguing? ISSUES HOLDING- decision of court REASONING- reasoning of majority decision CONCURRING/DISSENTING- agreeing or disagreeing PRESONAL IMPRESSIONS
Lochner v. New York
Rapid economic and population growth at the beginning of the 20th century. These people needed to eat. Baking industry flourished during this time. People lived in small apartments, not big enough to have an oven to make their own bread, so bread was baked in commercial baking. Bread had to be eaten fresh, since there weren't really preservation techniques.
what was in the rest of the brief?
Reports of factory or health inspectors; Social Scientists; Testimony before legislative investigating committees; Statutes; Quotes from medical texts; Male workers
Facts RAV v. City of ST. Paul
St. Paul charged defendant under its own ordinance instead of arson, criminal damage to property, or terroristic threats.
syllabus of court
Summary of the holding of the court. Not all cases will have the syllabus spelled out; Supreme Court of Ohio does this.
Calder v. Bull
The Bulls were stated beneficiaries of the will of Norman morrison, bbut were denied inheritance by Probate court in Connecticut. Inhertance went to Calder. After 18 months the Bulls fought the holding and persuaded legislature to change the law. However calder sued them for ex post facto law.
Natural law in U.S.
Thomas Jefferson- "life, liberty, and pursuit of happiness" -Abolitionists argued that slavery was a violation of natural law (and due process) because it deprived slaves of liberty without due process. -Slaveholders argued that Congress would be depriving them of their property without due process if slavery was abandoned.
Plantiff (Nix) argument
Tomato is a fruit What do the Plaintiffs use to make his arguments? Dictionary definition - fruit is the part of the plant that contains seeds.
Defendant (Tax Collector) argument
Tomato is a vegetable What does the Defendant use to make his arguments? Plain, everyday usage of tomato is thought of to be a vegetable.
Holding of Nix v. Hedden
Tomatoes are "vegetables," and not "fruit," within the meaning of the Tariff Act of March 3, 1883, c. 121. Justice Gray acknowledged that botanically, tomatoes are classified as a "fruit of the vine"; nevertheless, they are seen as vegetables because they were usually eaten as a main course instead of being eaten as a dessert.
chaplinsky v. New Hampshire
Walter Chaplinsky was a Jehovah's Witness who was in downtown Rochester handing out pamphlets that were critical of organized religion. A crowd was starting to form around him, blocking roads and causing a scene.
RAV HOLDING
While the state had the power to prohibit, the state did not have the ability to prohibit selectively. That is, the government does not have the right to discriminate on the basis of viewpoint. So, though the government could prohibit all intentional libel, it could not only prohibit the intentional libel of Republicans or Incumbents.
sociological jurisprudence
a philosophical approach to law stressing the actual social effects of legal institutions, doctrines, and practices. - expression of progressive era.
critical race theory
an intellectual and politically committed movement in American legal scholarship that studies race, racism and power. - theorists believe that even if the law is expressed in neutral language, it cannot be neutral. People who expressed the law had their own subjective perspectives that, once enshrined in law
positive law- napoleonic code
based on corpus juris civilis, sometimes calle code of justinian. example of civil code. Napoleon sought to make laws clearer and more accessible. He also wanted to ensure that the laws were written in vernacular and were much more rational.
most famous brandeis brief
brown v. board- "doll test,"- involved two sets of African American children, those in the integrated New York City public school system and those in the segregated Washington, D.C. public school system.
RAV Challenge
claimed it was overbroad and content-based, and thus violation of First Amendment. Overbreadth doctrine: The doctrine holding that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect - even if it also prohibits acts that may be legitimately prohibited. Content-based restrictions on speech are generally unconstitutional, except in a few circumtances.
civil law characteristics
codified—that is it is written and then it is applied. Comprehensive codes that are written and continuously updated. No, or at least much less, reliance on precedent. No stare decisis. Legislatures and legal scholars are much more influential than judicial decisions. Inquisitorial- judges investigate facts
crits believe law to be...
elaborate political ideology, exists to support the interests of the party or class that forms it. believe, law is a system of beliefs and prejudices that masks societal injustice as legitimate.
Brandeis Brief
first legal persuasive brief to rely more on social and physical science rather than the law. was 113 pages long only contained 2 pages of legal authority -model for health, safety, and welfare cases;
Lochner consistent with Muller?
in consistent because in Muller they considered it constitutional because they were women, but considered Lochner unconstitutional because they were men...no stare decisis.
RAV v. City of St. Paul
juvenile (RAV), along with several other teenagers, assembled a crudely-made cross by taping together broken chair legs. They burned the cross inside the fenced yard of a black family that lived across the street where RAV was staying.
Legal positivism
legal theory that holds the existence and content of law depends on social facts and not on its merits. - valid ONLY because they are enacted by an existing political authority or accepted as binding on a given society, not because they are grounded in morality or grounded in natural law. Cares about SOURCE no SUBSTANCE law as a machine
CRT
oftentimes themselves described as Anti-Asian and anti-Semitic. Critics believe that they are the fringe of the fringe, and impede work.
Virginia supreme court holding
statute is unconstitutional, like r.a.v. ordinance- the statute discriminates on the basis of content since it "selectively chooses on cross burnin bc of its distinctive message."
bakeshop act of 1895
the act made it a criminal offense for the owner of a bakeshop to allow his employees to work more than 10 hours in one day, or more than 60 more in one week.
police powers
the power of the states to regulate behavior and enforce order within the state for the general welfare, morals, health, and safety of their inhabitants. 10th amendment
common law characteristics
truth will be found when 2 sides dispute, neutral judge, each sides argue own sets of facts & law. -Judge interpret what statute means (Judge made law (case Law)= legislative law (statute). - reliance on juries with no formal training.
substance of the law
what does the law say
SOURCE of the law
who is proclaiming the law? who decides what 'good law' is?
sir william blackstone
wrote Commentaries on the Laws of England Declared laws are rules of human action or conduct. cited to discuss common law prior to adoption of u.s. constitution
