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CJ 301: Law in Society • Now: – The American legal system – Legal Realism – Durkheim • Next: – Weber Sample Test Question 1

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CJ 301: Law in Society • Now: – The American legal system – Legal Realism – Durkheim • Next: – Weber Sample Test Question 1. In McGautha v. California (1971) the majority wrote this famous passage: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” According to lecture, what does this reveal about the majority’s view of the reality of human judgment? a. b. c. d. The majority believes that California’s capital statute is too vague and thus creates the chance for too much arbitrariness. The majority believes that because all homicides are different and the backgrounds of each case so variable and unpredictable, it is not possible to write down clear, understandable rules to guide the discretion of persons (jurors or judges) deciding the life or death of a defendant. The majority believes that California’s capital statute is unfair because it arbitrarily targets black defendants. The majority believes that although it might be difficult to create an understandable standard for guiding the deciders of life and death, it is possible to do so and that all capital statutes must therefore delineate specific rules. Federal Courts in the USA Federal Courts in the USA Federal Courts in the USA State Courts in the USA • Generally: – Trial courts of limited jurisdiction • ‘Municipal Court’ • Misdemeanors – Trial courts of general jurisdiction • ‘Superior Court’ • Felonies – Appellate Court • State Supreme Court State Courts in the USA • San Diego has no Municipal Court – Judges are elected • California has two levels of state appeals: – Superior Court • Misdemeanors • Felonies – Appellate Courts • California Court of Appeal—Fourth District • California Supreme Court Constitutional Law • Two basic interpretive approaches: – Originalism: • Narrow, literalist interpretation of the text, kind of like fundamentalist religious interpretation • Assumes that the ‘intention of the framers of the Constitution’ can be known for certain – Living Constitution: • Focuses on the principles in the Constitution and attempts to apply it to modern issues • ‘Liberty’ meant something different in 1791 than 2016 – Note that both of these are highly problematic and reflect the indeterminate nature of the legal system (more on this later in the class) Functions of Law • • • • • • • • Social control Dispute resolution Social change Allocating justice Symbolic gestures Human rights Declared functions v. unspoken functions But, what is functional for some might not be for others Features of Criminal Law • Criminal law v. civil law • Criminal law defines crimes and punishments • Criminal procedure defines how crimes are adjudicated (e.g., steps in a trial, jury selection, etc.) Features of Criminal Law • Elements of a crime: • Mens Rea • Actus Reus Features of Criminal Law • Affirmative Defenses: • • • • • Self Defense Duress Diminished capacity Insanity Etc. Purposes of Punishment • Utilitarian: – Deterrence – Incapacitation – Rehabilitation • Symbolic: – Retribution Legacies of Legal Theory • Divine law: – Law is derived from god and the morality in religious texts • Natural law: – Law reflects universal moral truths, but not necessarily based in religion • E.g., ‘murder is bad’ Legal Formalism • The Enlightenment – Era beginning in the 17th century – 18th century – Rationalism – Reason – Science – Bureaucracy – Law Legal Formalism • Legal formalism separates law from values and treats law from an empirical, scientific perspective as separate from morality • Law + Facts = Outcome • Individuals’ status’ should not matter • Law is separate from the influence of other aspects of the society • Of course, this is an ideal, not reality Sociological Jurisprudence • Roscoe Pound’s ‘Sociological Jurisprudence’ was a radical shift from Legal Formalism: – Pound shifted the emphasis away from ‘legal science’ to the idea that law should be understood in its social context – Law should be used as a tool of social engineering – He thought law should focus on its effects on actual people—not on its own internal logic Critique of Sociological Jurisprudence • The big criticism is that when you start thinking of law as a method for social change, you run into the problem of ‘rule of men’ not ‘rule of law.’ E.g., why should we trust judges to decide what is ‘good’ for society? – It’s undemocratic • Do you think that Pound’s view of law should prevail in the contemporary USA? Legal Realism: Fact Skepticism • What constitutes the relevant facts, after all? • Which facts are actually let into the case? • There is a major screening process that takes place prior to a court getting involved in facts – Police – Prosecutor • Then, the judge screens what gets to the jury Legal Realism: Rule Skepticism • The deciding of a case is based more on hunches, feelings, intuition, instinct, conviction or unconscious processes (e.g., extra-legal factors) • Ex post facto (after the fact) justifications or rationalizations can always be provided, based on some theory, doctrine, formula, rule or precedent which justifies the decision • Jerome Frank: ‘Case opinions are formal clothes in which the judge dressed up his thoughts’ Legal Realism • Focus on the ‘real’ reasons why judges decide cases rather than the ‘legal’ reasons • This question emerged at a time when huge variation in appellate court decisions became apparent – Partly simply due to technology • It became obvious that legal formalism did not determine the outcome of cases • ‘Indeterminacy’ Legal Relativity • Black’s theory of legal relativity shows how even indeterminacy has ‘rules’ • Law varies with the social distance between the parties in a case, their social elevation, and the social direction of the complaint • Whether the complaint is downward (against a social inferior), upward (against a social superior), or lateral (against a social equal) Legal Relativity • Principles of legal relativity: – The closest cases (as between members of the same household) and the most distant cases (as between members of different societies) attract the least legal attention – But within a single society, the more relational distance, the more legal attention • Despite the identical legal definition for first degree murder, stranger killings are treated as more serious than family killings Legal Relativity • The Code of Hammurabi and the Code of the Roman Empire explicitly prescribed different penalties for different offenders and victims, whether nobles, ordinary citizens, or slaves • Modern law obeys the same principles, but largely in the dark, unrecognized or ignored by the legal profession • Definitely not Law + Facts = Outcome Legal Relativity • Distance also matters in other realms of law – Rape – Negligence – Contract Group Discussion • Think of 1-2 norms that have changed significantly in your lifetime that create anxiety for you or your loved ones Emile Durkheim • • • • • 1858 - 1917 French Social Theorist ‘The Father of Sociology’ Early and brilliant analyst of law & society Notion of ‘anomie’ is still in common usage to describe distressed communities Emile Durkheim Emile Durkheim Durkheim: Mechanical Solidarity • Pre-industrial societies where bonds were due to similarity between persons in the community • There was not much division of labor, aside from between genders and age groups • The collective conscience was strong and simple (God) • Individualism was almost nonexistent Durkheim: Organic Solidarity • This came with advancing divisions of labor and markets • Ironically, organic solidarity weakens the collective conscience, but strengthens bonds because persons need each other in more complex, profound ways than they did in mechanical solidarity Durkheim: Organic Solidarity • In other words, under mechanical solidarity, you would not starve to death if the bread maker failed to make bread (because you had your own farmed food), but in organic solidarity, people rely on others for many aspects of their life (food, banking, etc.), so Durkheim believed this complexity made the bonds stronger Durkheim: Repressive Law • Repressive law should coincide with mechanical solidarity • Punishment in mechanical society (according to Durkheim): – Mutilation – Executions Durkheim: Restitutive Law • Restitutive law should coincide with organic solidarity • Punishment under organic solidarity (according to Durkheim): – Returning things to their previous state—e.g., paying the victim – Note that in the USA this has not occurred – He also believed that depravation of liberty (prison) would prevail in societies with organic solidarity – This is partly true—but the USA (arguably the most organic society on earth) uses capital punishment (albeit for a tiny percentage of crimes) Durkheim: Anomie • Normlessness—when the persons living in a community do not have shared expectations of normal behavior or values • Anomie emerges when societies develop ‘too fast’ and the rule-making aspects of the society are out of touch with social expectations – Morality or Sex or drug laws that don’t reflect the views of most members of society – Is Proposition 8 an example of anomie? – The ‘bluejeans’ case in Italy – Economic changes leave large portions of the population out of work Durkheim: Contracts • Blood covenant: family-like agreements (I will treat you like a brother) • Real contracts: immediate exchange (I give you ten apples, you give me a pound of butter) • Solemn contracts: agreements with ceremonies • Consensual contracts: modern legal contracts where both parties enter into the contract willfully • Just contracts: fair contracts where both parties enter willfully and the contract does not conceal inequality – The point here is that ‘genuine consent’ only happens when the services exchanged in the contract are equal Comments on Durkheim • Durkheim is the ultimate ‘consensus theorist,’ meaning that he fundamentally believed that human communities have consensus • This is in contrast with Marx, who thought human communities tended to have conflict—at least until they reach the utopian vision of ‘pure communism’ • Also note that Durkheim has been proven wrong in his theory of ‘organic solidarity’ in relation to law and punishment • USA society is super ‘organic’ yet our laws are quite repressive CJ 301: Law in Society • Now: – The American legal system – Legal Realism – Durkheim • Next: – Weber Sample Test Question 1. In McGautha v. California (1971) the majority wrote this famous passage: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” According to lecture, what does this reveal about the majority’s view of the reality of human judgment? a. b. c. d. The majority believes that California’s capital statute is too vague and thus creates the chance for too much arbitrariness. The majority believes that because all homicides are different and the backgrounds of each case so variable and unpredictable, it is not possible to write down clear, understandable rules to guide the discretion of persons (jurors or judges) deciding the life or death of a defendant. The majority believes that California’s capital statute is unfair because it arbitrarily targets black defendants. The majority believes that although it might be difficult to create an understandable standard for guiding the deciders of life and death, it is possible to do so and that all capital statutes must therefore delineate specific rules. Federal Courts in the USA Federal Courts in the USA Federal Courts in the USA State Courts in the USA • Generally: – Trial courts of limited jurisdiction • ‘Municipal Court’ • Misdemeanors – Trial courts of general jurisdiction • ‘Superior Court’ • Felonies – Appellate Court • State Supreme Court State Courts in the USA • San Diego has no Municipal Court – Judges are elected • California has two levels of state appeals: – Superior Court • Misdemeanors • Felonies – Appellate Courts • California Court of Appeal—Fourth District • California Supreme Court Constitutional Law • Two basic interpretive approaches: – Originalism: • Narrow, literalist interpretation of the text, kind of like fundamentalist religious interpretation • Assumes that the ‘intention of the framers of the Constitution’ can be known for certain – Living Constitution: • Focuses on the principles in the Constitution and attempts to apply it to modern issues • ‘Liberty’ meant something different in 1791 than 2016 – Note that both of these are highly problematic and reflect the indeterminate nature of the legal system (more on this later in the class) Functions of Law • • • • • • • • Social control Dispute resolution Social change Allocating justice Symbolic gestures Human rights Declared functions v. unspoken functions But, what is functional for some might not be for others Features of Criminal Law • Criminal law v. civil law • Criminal law defines crimes and punishments • Criminal procedure defines how crimes are adjudicated (e.g., steps in a trial, jury selection, etc.) Features of Criminal Law • Elements of a crime: • Mens Rea • Actus Reus Features of Criminal Law • Affirmative Defenses: • • • • • Self Defense Duress Diminished capacity Insanity Etc. Purposes of Punishment • Utilitarian: – Deterrence – Incapacitation – Rehabilitation • Symbolic: – Retribution Legacies of Legal Theory • Divine law: – Law is derived from god and the morality in religious texts • Natural law: – Law reflects universal moral truths, but not necessarily based in religion • E.g., ‘murder is bad’ Legal Formalism • The Enlightenment – Era beginning in the 17th century – 18th century – Rationalism – Reason – Science – Bureaucracy – Law Legal Formalism • Legal formalism separates law from values and treats law from an empirical, scientific perspective as separate from morality • Law + Facts = Outcome • Individuals’ status’ should not matter • Law is separate from the influence of other aspects of the society • Of course, this is an ideal, not reality Sociological Jurisprudence • Roscoe Pound’s ‘Sociological Jurisprudence’ was a radical shift from Legal Formalism: – Pound shifted the emphasis away from ‘legal science’ to the idea that law should be understood in its social context – Law should be used as a tool of social engineering – He thought law should focus on its effects on actual people—not on its own internal logic Critique of Sociological Jurisprudence • The big criticism is that when you start thinking of law as a method for social change, you run into the problem of ‘rule of men’ not ‘rule of law.’ E.g., why should we trust judges to decide what is ‘good’ for society? – It’s undemocratic • Do you think that Pound’s view of law should prevail in the contemporary USA? Legal Realism: Fact Skepticism • What constitutes the relevant facts, after all? • Which facts are actually let into the case? • There is a major screening process that takes place prior to a court getting involved in facts – Police – Prosecutor • Then, the judge screens what gets to the jury Legal Realism: Rule Skepticism • The deciding of a case is based more on hunches, feelings, intuition, instinct, conviction or unconscious processes (e.g., extra-legal factors) • Ex post facto (after the fact) justifications or rationalizations can always be provided, based on some theory, doctrine, formula, rule or precedent which justifies the decision • Jerome Frank: ‘Case opinions are formal clothes in which the judge dressed up his thoughts’ Legal Realism • Focus on the ‘real’ reasons why judges decide cases rather than the ‘legal’ reasons • This question emerged at a time when huge variation in appellate court decisions became apparent – Partly simply due to technology • It became obvious that legal formalism did not determine the outcome of cases • ‘Indeterminacy’ Legal Relativity • Black’s theory of legal relativity shows how even indeterminacy has ‘rules’ • Law varies with the social distance between the parties in a case, their social elevation, and the social direction of the complaint • Whether the complaint is downward (against a social inferior), upward (against a social superior), or lateral (against a social equal) Legal Relativity • Principles of legal relativity: – The closest cases (as between members of the same household) and the most distant cases (as between members of different societies) attract the least legal attention – But within a single society, the more relational distance, the more legal attention • Despite the identical legal definition for first degree murder, stranger killings are treated as more serious than family killings Legal Relativity • The Code of Hammurabi and the Code of the Roman Empire explicitly prescribed different penalties for different offenders and victims, whether nobles, ordinary citizens, or slaves • Modern law obeys the same principles, but largely in the dark, unrecognized or ignored by the legal profession • Definitely not Law + Facts = Outcome Legal Relativity • Distance also matters in other realms of law – Rape – Negligence – Contract Group Discussion • Think of 1-2 norms that have changed significantly in your lifetime that create anxiety for you or your loved ones Emile Durkheim • • • • • 1858 - 1917 French Social Theorist ‘The Father of Sociology’ Early and brilliant analyst of law & society Notion of ‘anomie’ is still in common usage to describe distressed communities Emile Durkheim Emile Durkheim Durkheim: Mechanical Solidarity • Pre-industrial societies where bonds were due to similarity between persons in the community • There was not much division of labor, aside from between genders and age groups • The collective conscience was strong and simple (God) • Individualism was almost nonexistent Durkheim: Organic Solidarity • This came with advancing divisions of labor and markets • Ironically, organic solidarity weakens the collective conscience, but strengthens bonds because persons need each other in more complex, profound ways than they did in mechanical solidarity Durkheim: Organic Solidarity • In other words, under mechanical solidarity, you would not starve to death if the bread maker failed to make bread (because you had your own farmed food), but in organic solidarity, people rely on others for many aspects of their life (food, banking, etc.), so Durkheim believed this complexity made the bonds stronger Durkheim: Repressive Law • Repressive law should coincide with mechanical solidarity • Punishment in mechanical society (according to Durkheim): – Mutilation – Executions Durkheim: Restitutive Law • Restitutive law should coincide with organic solidarity • Punishment under organic solidarity (according to Durkheim): – Returning things to their previous state—e.g., paying the victim – Note that in the USA this has not occurred – He also believed that depravation of liberty (prison) would prevail in societies with organic solidarity – This is partly true—but the USA (arguably the most organic society on earth) uses capital punishment (albeit for a tiny percentage of crimes) Durkheim: Anomie • Normlessness—when the persons living in a community do not have shared expectations of normal behavior or values • Anomie emerges when societies develop ‘too fast’ and the rule-making aspects of the society are out of touch with social expectations – Morality or Sex or drug laws that don’t reflect the views of most members of society – Is Proposition 8 an example of anomie? – The ‘bluejeans’ case in Italy – Economic changes leave large portions of the population out of work Durkheim: Contracts • Blood covenant: family-like agreements (I will treat you like a brother) • Real contracts: immediate exchange (I give you ten apples, you give me a pound of butter) • Solemn contracts: agreements with ceremonies • Consensual contracts: modern legal contracts where both parties enter into the contract willfully • Just contracts: fair contracts where both parties enter willfully and the contract does not conceal inequality – The point here is that ‘genuine consent’ only happens when the services exchanged in the contract are equal Comments on Durkheim • Durkheim is the ultimate ‘consensus theorist,’ meaning that he fundamentally believed that human communities have consensus • This is in contrast with Marx, who thought human communities tended to have conflict—at least until they reach the utopian vision of ‘pure communism’ • Also note that Durkheim has been proven wrong in his theory of ‘organic solidarity’ in relation to law and punishment • USA society is super ‘organic’ yet our laws are quite repressive CJ 301: Law in Society • Now: – Defining law – The American legal system – Legal Realism • Next: – Durkheim Why do we Retain the Death Penalty? • • • • • • • American harshness? Religiousness? Individualism (choice)? Vigilantism (fear of state)? Victims’ advocacy? Gun culture? Bias? – Race/Class/Gender/SES Theories of Death Penalty Activity • Capital punishment in America has devolved to symbolism: – Justice John Paul Stevens said this is illegitimate • Debates about retention: – Deep, longstanding ideologies (individualism) – American polity (local politics) – American racism Racist Localism and Capital Punishment • Almost all there is to know about the USA’s death penalty is local, not national • Localism explains: – Its presence at all – Its Southern-ness – Its racism – Its deference to victims’ families – Its ‘broken-ness,’ etc. Racist Localism Parochialism (real and imagined fear of dangerous nonwhite outsiders) + Libertarianism (preference for individual autonomy, low taxes, few services, vigilantism, and dislike of state power) _______________ = Death sentences Current Legislative Activity • States continue to outlaw capital punishment, emplace moratoria, or restrict its usage • States continue to write laws to re-instate the death penalty or increase its usage What is Law? • Max Weber’s definition is good: – “an order will be called law if it is externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation” (and we might add that they have legitimate authority to coerce). Where does law come from? • • • • • God? The Constitution? Custom? The State? The Popular Sovereign? Why is law so important? • • • • • Protects equality Creates consistency Establishes norms Reflects norms Provides a ‘language’ to discuss issues The State and the Law • Law implies a state and a government • Stateless societies have norms, customs, and other forms of social control, but not laws Civics • Legislative • Senate • House of Representatives • Executive • President • Judicial • USSC • Federal Courts U.S. Legal System • Examples of Other Systems: – Totalitarian states • Law flows from state priorities • E.g., China, North Korea, Cuba • Law can thus be inconsistent – Religious states • Law flows from God • E.g., Iran, Saudi Arabia • Law can thus be inconsistent U.S. Legal System U.S. Legal System • Common law system: – Stare Decisis (‘let the decision stand’) – Binding doctrines are developed through jurisprudence – England is the originator of common law systems – Courts share power with the executive and legislative – Adversarial criminal system U.S. Legal System • Cases are decided through syllogistic reasoning – Major premise: – Minor premise: – Conclusion: All humans are mortal Paul is human Paul is mortal • Or – Major premise: – Minor premise: – Conclusion: Murder requires intent The defendant planned to kill the victim The defendant is guilty of murder U.S. Legal System • By Contrast, Civil Law Countries (not to be confused with ‘civil law’ in the USA): – Law is almost entirely statutory – Very little ‘caselaw’ – Less ‘adversarial’ more ‘inquisitorial’ – Continental Europe (France and Germany) U.S. Legal System • Decentralization – Federalism – E.g, the 2nd Amendment case that outlawed a gun ban in Washington DC. District of Columbia v. Heller (2008) – Lots of variation in CJ law and CJ process – Hard to generalize about ‘American’ Criminal Justice – Vermont might have more in common with France than with Arkansas Federal Courts in the USA • District Courts – Federal trial courts – Federal crimes: e.g., crimes on national lands, terrorist crimes, counterfeiting, tax evasion, etc – Judges are appointed by the President and confirmed by the US Senate – In criminal cases, the prosecutor would be a U.S. Attorney and the defense would be a Federal Public Defender Federal Courts in the USA • Circuit Courts – Federal appellate courts – There are 11 Circuit Courts – CA is in ‘The Ninth Circuit’ • CA, AZ, NV, OR, WA, ID, MT, AK, HI – 90% of caselaw is determined here – Judges are appointed by the President and confirmed by the US Senate The Federal Circuits Federal Courts in the USA • United States Supreme Court – Highest court of appeal in the USA – Usually hears Circuit Court appeals and State Supreme Court cases – Has discretion to accept cases, usually taking only 10% or so – Usually takes cases to settle doctrinal differences between circuit courts – Judges are appointed by the President and confirmed by the US Senate Federal Courts in the USA Federal Courts in the USA Federal Courts in the USA State Courts in the USA • Generally: – Trial courts of limited jurisdiction • ‘Municipal Court’ • Misdemeanors – Trial courts of general jurisdiction • ‘Superior Court’ • Felonies – Appellate Court • State Supreme Court State Courts in the USA • San Diego has no Municipal Court – Judges are elected • California has two levels of state appeals: – Superior Court • Misdemeanors • Felonies – Appellate Courts • California Court of Appeal—Fourth District • California Supreme Court Federal Court Judges in the USA • All Federal Court Judges are appointed by the President of the USA and confirmed by Congress in hearings • This process gets big news when it is a USSC Justice • Less hype when a Circuit Court Judge—but Circuit Court Judges are extremely influential Constitutional Law • Due process: • The 5th and 14th Amendments guarantee that a person must be afforded due process if the government intends to take away his or her life, liberty, or property • Equal protection: • The 14th Amendment states that no state shall deny any person the equal protection of the laws, meaning that all persons must be treated equally when a law is applied Constitutional Law • Two basic interpretive approaches: – Originalism: • Narrow, literalist interpretation of the text, kind of like fundamentalist religious interpretation • Assumes that the ‘intention of the framers of the Constitution’ can be known for certain – Living Constitution: • Focuses on the principles in the Constitution and attempts to apply it to modern issues • ‘Liberty’ meant something different in 1791 than 2016 – Note that both of these are highly problematic and reflect the indeterminate nature of the legal system (more on this later in the class) Functions of Law • • • • • • • • Social control Dispute resolution Social change Allocating justice Symbolic gestures Human rights Declared functions v. unspoken functions But, what is functional for some might not be for others Features of Criminal Law • Criminal law v. civil law • Criminal law defines crimes and punishments • Criminal procedure defines how crimes are adjudicated (e.g., steps in a trial, jury selection, etc.) Features of Criminal Law • Elements of a crime: • Mens Rea • Actus Reus Features of Criminal Law • Affirmative Defenses: • • • • • Self Defense Duress Diminished capacity Insanity Etc. Purposes of Punishment • Utilitarian: – Deterrence – Incapacitation – Rehabilitation • Symbolic: – Retribution • Information gathering? • Sadistic pleasure? Legacies of Legal Theory • Divine law: – Law is derived from god and the morality in religious texts • Natural law: – Law reflects universal moral truths, but not necessarily based in religion • E.g., ‘murder is bad’ Legal Formalism • The Enlightenment – Era beginning in the 17th century – 18th century – Rationalism – Reason – Science – Bureaucracy – Law Legal Formalism • Legal formalism separates law from values and treats law from an empirical, scientific perspective as separate from morality • Law + Facts = Outcome • Individuals’ status’ should not matter • Law is separate from the influence of other aspects of the society • Of course, this is an ideal, not reality Sociological Jurisprudence • Roscoe Pound’s ‘Sociological Jurisprudence’ was a radical shift from Legal Formalism: – Pound shifted the emphasis away from ‘legal science’ to the idea that law should be understood in its social context – Law should be used as a tool of social engineering – He thought law should focus on its effects on actual people—not on its own internal logic Critique of Sociological Jurisprudence • The big criticism is that when you start thinking of law as a method for social change, you run into the problem of ‘rule of men’ not ‘rule of law.’ E.g., why should we trust judges to decide what is ‘good’ for society? – It’s undemocratic • Do you think that Pound’s view of law should prevail in the contemporary USA? Legal Realism: Fact Skepticism • What constitutes the relevant facts, after all? • Which facts are actually let into the case? • There is a major screening process that takes place prior to a court getting involved in facts – Police – Prosecutor • Then, the judge screens what gets to the jury Legal Realism: Rule Skepticism • The deciding of a case is based more on hunches, feelings, intuition, instinct, conviction or unconscious processes (e.g., extra-legal factors) • Ex post facto (after the fact) justifications or rationalizations can always be provided, based on some theory, doctrine, formula, rule or precedent which justifies the decision • Jerome Frank: ‘Case opinions are formal clothes in which the judge dressed up his thoughts’ Legal Realism • Focus on the ‘real’ reasons why judges decide cases rather than the ‘legal’ reasons • This question emerged at a time when huge variation in appellate court decisions became apparent – Partly simply due to technology • It became obvious that legal formalism did not determine the outcome of cases • ‘Indeterminacy’ Legal Realism Legal Realism Legal Relativity • Black’s theory of legal relativity shows how even indeterminacy has ‘rules’ • Law varies with the social distance between the parties in a case, their social elevation, and the social direction of the complaint • Whether the complaint is downward (against a social inferior), upward (against a social superior), or lateral (against a social equal) Legal Relativity • Principles of legal relativity: – The closest cases (as between members of the same household) and the most distant cases (as between members of different societies) attract the least legal attention – But within a single society, the more relational distance, the more legal attention • Despite the identical legal definition for first degree murder, stranger killings are treated as more serious than family killings Legal Relativity • The Code of Hammurabi and the Code of the Roman Empire explicitly prescribed different penalties for different offenders and victims, whether nobles, ordinary citizens, or slaves • Modern law obeys the same principles, but largely in the dark, unrecognized or ignored by the legal profession • Definitely not Law + Facts = Outcome Legal Relativity • Distance also matters in other realms of law – Rape – Negligence – Contract Law in Society • Now: – Finish Guns Across America • Next: – Articles on School Shootings Guns Across America • The Second Amendment: – A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Guns Across America • Because it is in the Constitution, the Amendment is supposed to apply ‘forever.’ • If things change, you must amend the Amendment. Guns Across America • Government = balancing order and freedom • Two forms of culture – Cultures of control – Cultures of freedom Right of Rebellion? • How might civilians possess a ‘right’ under our system of laws to use violence against our government? • How would the imposition of ‘tyranny’ be determined, and who would be entitled to make that determination? • Against whom, exactly, would citizens use lethal force? – – – – – Local police? State government leaders? The President? Judges? The Army? • Wouldn’t any rebellion be crushed immediately? Right of Rebellion? • Would such a rebellion or insurrection have any chance of improving whatever political circumstances existed in the country at such a moment? • Might the insurrection ‘remedy’ actually be worse than the ‘disease’ it claims to fight? • Is the threat of rebellion enough to check tyranny? • The Constitution specifically and explicitly gives the national government the power to suppress by force anything even vaguely resembling rebellion. • The Militias mentioned in the Second Amendment were themselves supposed to be used to suppress (not cause) rebellion or insurrection. Sovereignty and Violence • Should the governments have a monopoly on violence? Early Gun Laws • ‘The Wild West’ and cowboy shootouts were myths • Gun homicides were very rare • Dueling! • Slavery – Slave owners wanted some slaves to sometimes have guns – But always worried about slave rebellion Early Gun Laws • Early gun laws that invoked gun confiscation: – Military necessity – Failure to swear a loyalty oath to the government – Improper storage of firearms – Improper firearms possession (especially handguns and machine guns) – Violations of certain hunting laws, and – Failure to pay a gun tax Early Gun Laws • The gun law movement in the last 30 years relaxing gun restrictions – Shielding manufacturers and dealers from criminal and civil liability – Rise of unregulated internet gun and ammunition sales – Concealed carry laws – Open carry movement – ‘Stand your ground’ laws Early Gun Laws • The gun law movement in the last 30 years relaxing gun restrictions – Is a refutation of the past – And has little to do with safety and security – And everything to do with politics Types of Guns • Handguns - Semi-automatic pistol - Double-action revolver • Long-guns - Rifle - ‘assault rifles’ are semi-automatic rifles, usually with a high capacity bullet magazine • Shotgun Are Guns Fun? • Gearheadism? • Is hunting recreation? ‘Stand Your Ground’ Laws • Homicide is usually a confusing encounter between persons who know each other • The theory is that individuals ‘have a right’ to lethally defend themselves when in a location they ‘have a right’ to be in ‘Stand Your Ground’ Laws • Cultural values – Individualism – Anti-government sentiment – Vigilantism – The ‘True Man’ doctrine – The belief the retreat is ‘cowardly’ ‘Stand Your Ground’ Laws • NRA Strategy of working at the state level – ‘Shall issue’ laws instead of ‘may issue’ laws – Lower visibility than national or local politics ‘Stand Your Ground’ Laws • Self defense - The defender ‘reasonably believes’ they are under threat - This is based on the person’s belief, not on objective facts - The police can only investigate: o Whether the person had a right to be where he was o Whether the person was engaged in lawful activity o Whether the person claimed fear of death or imminent bodily harm - Often, it is only the shooter who is a witness ‘Stand Your Ground’ Laws • Zimmerman killing of Trayvon Martin - Zimmerman was ‘patrolling a neighborhood’ in his car in Sanford Florida (near Orlando) - He was armed with a handgun he carried legally - He saw a ‘tall African-American male with a hoodie wandering around’ - He called 911 and was told to stay in his vehicle - Instead he followed Trayvon Martin on foot - Zimmerman and Martin get into some kind of encounter - Zimmerman shoots Martin once in the chest at close range, killing him - Zimmerman has cuts to his head and face - Martin was unarmed - Zimmerman was later charged with murder but acquitted at trial Florida Law re Zimmerman Case - - - Zimmerman was not immediately arrested because the police cannot arrest someone with probable cause for self-defense Initial police investigation was not thorough Defendants claiming self-defense can have a pre-trial immunity hearing, which has the preponderance of evidence standard, and can result in no criminal charges o Zimmerman did not invoke this Jury instructions: o “If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed it justified” Zimmerman could claim immunity in a post-acquittal civil suit Stand Your Ground becomes extra complicated in states like Florida, which issues lots of conceal-carry permits, because defendants might ‘reasonably believe’ that others are carrying a concealed gun ‘Stand Your Ground’ Laws • Plausible consequences - More homicides Carriers over-empowered Carriers more likely to enter dangerous situations Guns might be used against carriers New York Gun Laws • Building a gun as a gear-head exercise in fun • The argument that ‘criminals ignore gun laws’ makes no sense because criminals ignore all laws—should we not have any criminal laws? • Gun laws could be like: o Seat-belt laws o Motorcycle helmet laws o Smoking laws o Etc. o Sometimes ‘behavior follows the law’ o Do laws create or reflect norms? Stand Your Ground v. Duty to Retreat • Discuss and take a position on two forms of self-defense, ‘stand-your-ground’ v. ‘duty-toretreat’ laws: – Stand-your-ground says that you can defend yourself with lethal force in public, even if there is a means of escape – Duty-to-retreat says that you are required to escape if possible Mass Shootings • Rare, but usually carried out with semi-automatic weapons, frequently ‘assault rifles’ • Common characteristics: o o o o o o o o Diagnosed mental illness known to family and/or friends Military background White males Recently experienced stressful event like job loss or relationship breakup The events they committed were planned They gave clear warnings Most likely to kill strangers Most die during the attack either by suicide or police action