Law and Society: Lecture Notes

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21A. 219 Jurisprudence: Evolving Paradigms

A. Natural law theory (Aristotle, St. Thomas Aquinas, Declaration of Independence) justice and law inseparable

eternal, universal, immutable

law external to society

part of the natural order of things

humanly created law is only law if just, i.e. conforms to eternal, a historical

principles of natural law judges find and apply law laissez-faire - status quo - the ways things are is natural order of things; law cannot actively change the world; law demands a different way of doing things B. Legal positivism, Analytical jurisprudence (J.L. Austin, H.L.A. Hart) law and morality distinct realms

"law is the command of the sovereign"

rules and laws analyzed for their internal logic and consistency

primary and secondary principles

concern with authority and responsibility for making law, proliferation

of legal authority (regulation, administration, adjudication and alternatives) C. Legal Realism: The mask falls (Holmes, Cardozo, Llewellyn) law is what courts do (thus ushers in empirical social science studies of law in action) separation of law and morality (this is not same as claiming that law is necessarily immoral) deconstruction of claims of legal logic and formalism pragmatic approach to law/ since is human creation we must take responsibility for its consequences D. Fuller's Morality of Law: 8 ways law can fail rejects bad man theory, reintroduces morality to law while natural law theory centers around a morality external to law, to which law must conform, Fuller's morality is internal to law itself, a process the morality consists of 8 standards to which law aspires

Eight ways law can fail to be law: 1. No rules; every issue decided on ad hoc basis

2. Failure to make rules public or known to those who will be subject to them

3. Retrospective law (making rules in the present and applying to past actions)

4. Failure to make rules understandable

5. Enactment of contradictory rules

6. Rules that require conduct beyond the powers of those affected

7. Frequent, unpredictable rule changes

8. Lack of congruence between rules and administration or enforcement

21A 219 Law and Society Criminal Justice System I. Review where we have been Classical, positive, and realist jurisprudence produced three insights law is a system of rules designed to constrain arbitrary power (set of rules about the use of force) gap between law on the books and law in action need to understand law as a social system II. The Realist legacy - social scientific studies of law - central insights: - how action is organized matters - how actors perceive and interpret situation matters (even if distorted and false) because they act on their interpretations Method -locate action within context micro/behavioral expand to macro Functional analysis (a way of making sense of empirical observations) manifest functions - intended, purposes latent functions - unintended outcomes, contributions to system dysfunctions Functions of law (Llewellyn and Hoebel) social control - "to make men [sic] go around in more or less clear ways" dispute resolution - "to clean up social messes" authoritative distribute costs and benefits - available resource for social invention (Chayes) social change - policy III. Criminal Justice SYSTEM A. General propositions: 1. A set of quasi independent sub - systems , each of which gathers information and makes decisions about the criminal status of persons and behaviors, and, depending on decision, filters out of system or passes along through a a hierarchy of linked parts (similar to civil litigation pyramid), screening and reviewing decisions. 2. Structure, organization, interests and operating definitions of professional social control determine how many and what types of persons are prosecuted. 3. control lies with those with least legal authority.

4. Difference between reactive and proactive systems of control. Example of how structure affects amount and character of crime. Reactive and proactive criminal process. Currie on witchcraft. B. The subsystems: 1. Citizens initiate action in the criminal justice process: gatekeepers, bottom of the hierarchy; factors influencing citizen decisions to call the police: insurance coverage relationship between victim and offender social similarity victim attitudes toward police 2. Police: responsive criminal justice; little police-initiated criminal justice; a) what factors influence police decision to arrest: seriousness of event amount of situational evidence victim/complainant preference deference and demeanor of suspect degree of deference expressed by complainant race of suspect and complainant? b) Bittner on police: Florence Nightingale in Pursuit of Willie Sutton function of police: (what falls within their purview) "something that ought not to be happening and someone had better do something about it now" potential to turn into crime/danger situational management, not long term police vs. others: low visibility/high visibility empowered to use situationally defined force/immediate object of others' force boring/volatile contradictions of policing law & order, constraints 3. Prosecutor: organization demands, workload, plea bargaining process, racial discrimination in capital punishment. 4. Judges, appeals courts, corrections, parole..... 5. "Real Justice." Discussion. Functions of the lower courts. Feely, "The Process is the Punishment." Emerson, "Holistic effects."

21A. 219 Civil Justice System 1. Civil justice system: litigation between two private parties (not always) (see chart distributed comparing civil and criminal justice systems) includes: contracts, marriage/divorce/custody, probate/ real estate and TORTS: civil suits for injury -- leads to compensation for harm or injury 2. Public debate and criticism distinguish policy analysis from social science inquiry approving of the civil justice system, "it is doing a fine job" improving the system, "here is how it could be better" what is wrong with the system, "how the American people are being screwed by the system" social science inquiry what evidence exists to substantiate claims about adequacy or failures of civil justice system (from social science research) how does the civil justice system distribute costs and benefits "why the 'haves' come out ahead" (characteristics of players and system) access to and use of civil justice system (by class, race, gender etc.) 4. Claims for a system in crisis too many claims American too quick to sue greedy lawyers encourage litigation many claims are frivolous irresponsible juries award ridiculous sums deep pocket plaintiffs asked to bear costs for others' actions 5. Example of Lubeck v. McDonald's 6. Evidence supporting / or challenging claims of a system in crisis Juries (not) biased toward plaintiffs (American Jury Project; Vidmar study) Proportion of awards to costs/injuries (role of inflation, medical costs, pyramid and sifting of disputes) 7. Pyramid of disputing (from 1000 events to 1.5 trials) ( a system of linked parts) from all events - injurious events - perceived injuries (naming) - grievance (blaming) claiming (against another for injury) - see a lawyer - file a suit - trial - appeal variable pyramids by type of event (automobile vs. environmental damage) (torts, discrimination, post divorce) possibility of too little claiming

8. Why the 'haves' come out ahead? one shotters vs. repeat players in a system of linked parts recurrent transactions generate routine disputes/ predict events, routinize responses economies of scale relationships with institutional incumbents fewer constraints for settlement, play the odds play for rule changes access to quality legal counsel structure of a passive legal system (action initiated by plaintiffs) 9. Access to civil justice research social class affects court use directly because poor have fewer resources social class affects court use indirectly by shaping the legal needs of the poor legal needs often defined by the needs of middle and upper class, property holders legal needs and disputing defined by economic rationality, cost benefit analysis, ignores cultural variation and meanings that lie beside if not outside economic exchange variations in research produce differential results variations in need/ by type of problem variations in disputing interpretations by cultural location 10. A study combining multiple methods ( broad demographically represented survey, in-depth ethnographic data collection) legal needs broadly defined (over 100 problems); average 14 per family no race, ethnic, socio-economic variation in # of problems reported; only variation in number by gender types of problems - noisy neighbors, consumer issues: race, socio-economic and gender variation in the types of problems legal action taken in 14% of problems no race, ethnic or social class variation in legal action confirmed low rate of civil litigation, confirmed rate of minorities in civil courts

21A 219 Law and Society LEGAL PROFESSION What is a profession? How does it differ from other occupations? public good (Durkheim) autonomy (Weber) monopoly and market entry technical skill prestige/ income? How is law practiced? A. Blumberg, "The Practice of Law as a Confidence Game" "Legal service lends itself particularly well to confidence games. Usually a plumber will be able to demonstrate empirically that he has performed a service by clearing up the stuffed drain, repairing the leaky faucet or pipe - and therefore merits his feel. He has rendered, when summoned, a visible, tangible boon for his client in return for the requested fee. A physician who has not performed some visible surgery or otherwise engaged in some readily discernible procedure in connection with a patient may be deemed by the patient to have "done nothing" for him. As a consequence, medical practitioners may simply prescribe or administer by injection a placebo to overcome a patient's potential reluctance or dissatisfaction in paying a requested fee "for nothing." "In the practice of law there is a special problem in this regard, no matter what the level of the practitioner or his place in the hierarchy of prestige. Much legal work is intangible either because it is simply a few words of advice, some preventive action, a telephone call, negotiation of some kind, a form filled out and filed, a hurried conference with another attorney or an official of a government agency, a letter or opinion written, or a countless variety of seemingly innocuous and even prosaic procedures and actions." End products of legal work: criminal work - often guilty plea Defense lawyers as double agents

Sarat and Felstiner, "Law and Social Relations: Vocabularies of motive in lawyer/client interaction" C. Wright Mills, "motive mongering" - imputation of motive in the effort to construct shared interpretations of action;" motives are the terms with which interpretation of conduct proceeds..." "Lawyer and client sometimes negotiate agreed interpretations of behavior. Agreement is more often reached when the discussion of motive concerns behavior during the divorce than when the focus is on behavior during the marriage." Lawyers represent the system to the client - descriptions become resources in managing relations with clients.

Structure of the Profession

21A 219 Players in the system: Judges Recall: understandings of law over time (natural law, positivist, realist) looking within criminal and civil justice systems now, turn to more detail look at "judging" stage of systems The Internal Logic of Law 1. Sources of law (statutes, cases, constitutions) (common law vs. civil law systems) (criminal vs. civil law - prior hand out) distributing costs of litigation (burden of costs; burden of proof) 2. A brief history of the common law William the Conqueror 1066 Sheriffs (shire reeve) Henry II 1100s Brackton's treatises 1250 3. The morality of (common) law (Lon Fuller) "law is an enterprise of subjecting human conduct to the governance of rules" morality not external (natural law) but internal to the legal process justness inheres in how law is made and applied it is law (rather than brute power or politics to the extent that adheres to internal rules of procedure) 8 ways law can fail: no rules, every issue decided on ad hoc basis failure to make public or known to subjects of law what law expects abuse of retrospective law undermines expectations/ prospective action failure to make rules understandable enactment of contradictory rules require conduct beyond powers of subjects affected too frequent changes so people can't organize and predict failure to assure congruence between official acts and declared rules ('the gap' between law on the books and law in action) 4. What is a case? jurisdiction over cases and persons informing the courts, complaints, indictments, discovery settling on the issue (legal relevance, standing to sue) trials vs. debates (burdens of proof, motions to dismiss, arraignments, indictments, show cause) role of procedure (greasing the system; form of play cf. baseball; possibility of a jury of laymen) appeals (manifest functions/ getting right vs. latent functions/ creating uniformity, delaying enforcement and costs, repeat players)

5. Legal reasoning reasoning by example: meaning of a rule defined by cases/examples meaning of case defined by facts invoked principle of justice implicit (like things treated the same) 3 step process of legal reasoning (note spaces for invention; sources of constraint) similarity is seen between two cases rule of law in first case is identified rule of the first case is applied to the second Examples of legal reasoning (from Carter and Burke)

21A 219 Law and Society LEGAL PROFESSION What is a profession? How does it differ from other occupations? public good (Durkheim) autonomy (Weber) monopoly and market entry technical skill prestige/ income? How is law practiced? A. Blumberg, "The Practice of Law as a Confidence Game" "Legal service lends itself particularly well to confidence games. Usually a plumber will be able to demonstrate empirically that he has performed a service by clearing up the stuffed drain, repairing the leaky faucet or pipe - and therefore merits his feel. He has rendered, when summoned, a visible, tangible boon for his client in return for the requested fee. A physician who has not performed some visible surgery or otherwise engaged in some readily discernible procedure in connection with a patient may be deemed by the patient to have "done nothing" for him. As a consequence, medical practitioners may simply prescribe or administer by injection a placebo to overcome a patient's potential reluctance or dissatisfaction in paying a requested fee "for nothing." "In the practice of law there is a special problem in this regard, no matter what the level of the practitioner or his place in the hierarchy of prestige. Much legal work is intangible either because it is simply a few words of advice, some preventive action, a telephone call, negotiation of some kind, a form filled out and filed, a hurried conference with another attorney or an official of a government agency, a letter or opinion written, or a countless variety of seemingly innocuous and even prosaic procedures and actions." End products of legal work: criminal work - often guilty plea Defense lawyers as double agents

Sarat and Felstiner, "Law and Social Relations: Vocabularies of motive in lawyer/client interaction" C. Wright Mills, "motive mongering" - imputation of motive in the effort to construct shared interpretations of action;" motives are the terms with which interpretation of conduct proceeds..." "Lawyer and client sometimes negotiate agreed interpretations of behavior. Agreement is more often reached when the discussion of motive concerns behavior during the divorce than when the focus is on behavior during the marriage." Lawyers represent the system to the client - descriptions become resources in managing relations with clients.

Structure of the Profession

21A. 219 Law and Society Alternatives to Law: Varieties of dispute processing I. Functions of law: the context for considering law and alternatives to law. Recall the meaning of functions: consequences of patterns of action intended (manifest functions) unintended (latent functions) a) social control: processes and structures used to (intended to) reduce or prevent deviance. Law is formal or governmental social control. b) dispute resolution: there is no society without dispute, difference, conflict and most have violence of some sort. Societies vary (in time and across the globe) in how they manage conflict, differences, disputes. c) distribution, innovation, and social change. II. Historical forms of "law" III. Contemporary forms of dispute resolution - processes and their names: varies IV. Mediation, a criticism and a critique criticism: unmasking, truth telling, holding institutions accountable to self-claims critique: locates practices within history and social forces; identifies who benefits and and who loses by the way things are done; alternatives not pursued A. Claims for mediation: informal, third party without coercive power non-binding faster cheaper better solutions, get to heart of problem B. Observations of mediation routinized rather than responsive and adaptive mandated by organizations and legal institutions mediators act with authority cheaper, faster, not clearly better solutions differences in practice between law and mediation not as stark as conceptual models both negotiate settlements blend formal and informal develop categories and language of "trouble" and how to respond (typifications) often involve postponement - time

C. If mediation is not what claims to be, what is it? history of its rise since 1970s, professional project of legal elites, access to justice proponents, progressive community organizers particular normative conception of conflict : it is bad rather then productive reconceptualizing the human subject (person) as rights bearer, set of interest, constellation of needs D. End product: a new profession

Image courtesy of Wanted Posters Dot Com. Used with permission.

“Help Reduce Child Support Arrears.” Wanted Posters Dot Com. “7410 P.N. –Clemency Sex Offenders.” Advertisement in a Newspaper. “Recidivism.” From Vicki J. Running, “Analyzing the Constitutional Challenges and Policy Considerations Facing Megan’s Law, …” Honors Thesis in Philosophy, Wellesley College, 1997. Table: Index of Crime, United States, 1980-1999.

Karl Marx (1818-1883). From the Preface to A Contribution to the Critique of Political Economy. (1859) 1913, pp. 11-13. Herbert, Bob. “Nike's Boot Camps.” In America. In New York Times. 31 Mar. 1997. Gayle Krishenbanm. “Nike's Nemesis." In Newsmaker: Cicih Sukaesih. Griswold, Wendy. "The Ideas of the Reading Class." Contemporary Sociology 30, 1 (Jan. 2001): 4-7.