Law and Society

Legal 208

Winter 2006 Mid-Term Study Sheet

Christopher J. Enge

 

I will write the test from the following subject areas.  If you know what is on this sheet, you should do fine.  First, one broad point.  One easy way for the lazy instructor to come up with good questions is to just use the ones in the book.  Going over all the questions in the chapters we covered would be a good review.

 

Forward--F1-F4

Be able to describe Kafka's overall view of the law.  Examples from the stories will help.  Although Kafka's writing is murky and his exact meaning is never clear, you should be able to describe the general feel.  Be able to take examples from Kafka's stories to support your interpretations.

 

PART I--Law in Theory and Practice

Chapter 1--Lawmaking and Precedent

Intro--The Holmes quote about prediction of what courts do is very important.  Be able to explain why that is what lawyers do.

 

1.1.  The Bramble Bush--Llewellyn

Define precedent, stare decisis, common law system, civil law system.  Be able to describe the advantages of a precedent system as Llewellyn describes them.  In class, we covered common law and civil law.  Be able to describe the two, and their origins.

 

1.2-1.6, 1.8  Wife Beating Cases

Do not memorize the names of cases or citations.  The point here is to be able to describe how legal rules change over time.  Knowing the chronology of these cases will help you answer questions like "Does law change over time?" or "Do legal decisions reflect the culture at a particular time and place?"  What I am looking for is the ability to show how cases with similar fact patterns lead to different results as the courts abandon a bad rule.

 

1.7  The Bramble Bush--More Llewellyn

Be able to describe the techniques judges have for using a welcome precedent, and rejecting an unwelcome precedent.  For example, Llewellyn describes how the facts of a precedent can be interpreted in a narrow way, so that the judge can say the case only applies to that weird situation (leaving the judge free in the case at hand).   Also, note how Llewellyn describes these tools as available to both sides in a case, so that the advocates can argue away the bad cases and point the judge to the good cases.  Be able to contrast what Llewellyn calls the orthodox view of precedent and his view.

 

Morrison case.  Two things here.  First, domestic violence still exists in America.  Two, most criminal law is state law.  In Morrison, the Supreme Court struck down a federal law attempting to "federalize" many domestic violence cases.

 

Easterbrook and Reinhardt interviews on website.  Be able to explain the difference between modern conservative and liberal judicial attitudes.  These two exemplify each tradition.

 

Chapter 2--Law and Official Discretion

2.1  Judging Process and Judge's Personality.  Jerome Frank.

Define legal realism, as typified by Frank and Llewellyn.  Be able to describe the results oriented approach Frank argues judges use.  The example about reckless driving and intent to kill is very important.  Contrast formalism, as Frank describes it in the first full paragraph in the right column of page 23.  Note the description of judge shopping on p. 26.  Be aware of the key difference between Llewellyn and Frank.  Frank argues that precedent does not matter at all, that judges do whatever they feel like and then justify it.  Llewellyn does not throw out the impact of precedent altogether, but rather argues that the judges' legal training impacts on the judges' reactions to cases.

 

* * *Remember, law is not math.  It is full of argument and controversy.  Not everyone believes in legal realism.  We cover other legal writers later who reject the "what the judge ate for breakfast" view of the world.  Be prepared to answer essay questions such as "are the legal realists right?" or "if the legal realists are right, is that good or bad?"

 

2.2  A Forgery Case--California Sentencing Institute

This is what I call a routine case (as opposed to say Dudley and Stephens below).  Be able to describe how the different judges try to deal with this relatively minor criminal.  Contrast punishment vs. rehabilitation.

 

2.3  Queen v. Dudley and Stephens

This is not in here so that you will have a feel for what to do if you are involved with a lost at sea-cannibalism situation.  The key point to the case is the judge's hostility to a "necessity" defense.  Be able to describe what the defendants were arguing, and the judge's hostility to their position.  Also, be able to critique the judge's statements about how sometimes the law can require people to do things no one could reasonably be expected to do.  Lastly, does the judge's hostility toward setting a bad precedent and opening the necessity door indicate that he believes Frank's thesis that the judges in the courts below him will just make things up as they go, without regard to precedent?

 

2.4  Incarcerated America

Two main points here.  We have a lot of people in jail and prison in America, and they are disproportionately from minority groups.  Be able to discuss the reasons in the book and from class discussion as to why this is.

 

Chapter 3--Law and Values

Intro--Be able to describe how values impact, or fail to impact, the law.

 

3.1  Sorcerer and His Magic

Be able to relate this story and the moral implications.  Note the comments on p.44-45 about how legal education transforms the students.

 

3.2  Simple Living and Hard Choices

This story is here so that you can answer a question like "show how ethics can depend on the time and place."

 

3.3  Cook v. State

Be able to discuss how the court decided this case, and the moral implications.

 

3.4-3.7.  Death Penalty

Be able to describe the history of the death penalty in the U.S. since ca. 1970 (especially Furman).  Be able to discuss the key arguments for and against the death penalty.  Emphasize the recent developments in the case against the death penalty (3.6 Lutton).

 

Chapter 4.  Law and Conflicting Interests

Intro.  Be able to describe Pound's social engineering approach to the law.  Know the chart on p. 75.  Be able to contrast Pound's view of the law to Kafka's and the legal realists'.

 

4.1  Why the "Haves" Come Out Ahead

Be able to describe Gallanter's analysis of repeat players and one shotters.  What advantages do the repeat players have?  What happens when repeat players go up against one shotters in court, or each other?  Note the chart on page 78 and who tends to fall in each group.  Also, does the presence of lawyers change the analysis?

 

4.2  Case of the Spoiled Chiles

Know the story, and describe how and why the court did what it did.

 

4.3 -4.5  Nuisance and Pollution Cases

Again, do not memorize names of cases and citations.  Be able to discuss generally the facts in these situations, and what the courts did.  The key point these cases illustrate is that sometimes courts feel that major social change is beyond their capabilities.  Note how the cases talk about the impact on the community at large, as opposed to just the parties involved.  Are the courts properly deferring these issues to the political branches?

 

Chapter 5.  Law, Status, Wealth and Power

Intro.  Max Weber's statement that law is coercive order is important to remember.  Also, be aware of the argument that law maintains the existing power relationships.

 

5.1  The Working Day, Karl Marx

Recall the Marxist critique of working conditions, especially for little kids, in the 19th Century.

 

5.2  Donovan

Key points here are that the government has created agencies like OSHA to address the kinds of things Marx was concerned about above.  Know that agencies are from the executive branch, and must operate within limits defined by Congress.  In Donovan, industry argued that Congress required OSHA to conduct a cost benefit analysis in setting standards.  The court disagreed.

 

 

5.3  The State, Lenin

In class, we covered basic Marxist theory.  Recall that all Marxist thought comes from the belief that class struggle is at the heart of all political problems.  Here, Lenin argues that the entire purpose of the state is to provide a means for the elites to oppress everyone else.  Be able to relate Lenin's historical theory that ever since people invented the state, the elites have used it to control everyone else.  Also, Marxists believe a strong state is necessary to bring an end to the class struggle.  However, eventually classes will be eliminated, and also the need for the state. 

 

Be able to relate the basic ideas of Marxism we covered in class, and also be able to provide a critique of them.

 

5.4  Streich v. G.M.

This is example of a big company picking on a little company.  Note how draconian the terms of the form contract are.  Note how the judge is concerned that the right legal answer is not necessarily "right."  Be able to describe how G.M. was able to successfully argue that there was no contract at all, and was able to get out of any obligations to Streich whatsoever.

 

Skip 5.5-5.6

 

5.7  NAFTA, John Higbie

Be able to describe how this small company reacted to the change in the legal environment with the enactment of NAFTA.  How does this situation fit within the ideas of class struggle in the chapter?

 

Skip 5.8

 

5.9 Testimony of Bywater

This is the union response to NAFTA and free trade in general.  Generally, unions fear loss of jobs and power as traditional union jobs move to other countries, or even to parts of the U.S. without a strong union tradition.

 

Milton Friedman article on website

I included this for balance.  If I give you a free trade question, be able to explain gains from trade and some of the common objections to free trade.  The best answer will show balance, recognizing that there are pros and cons to both sides.

 

Chapter 6  Law and Popular Will

Intro.  Note the different ways the popular will is made known.

 

6.1  Cheyenne Way--Llewellyn

Note the three different cases, and how the Cheyenne dealt with them.  Recall how decisions are made, and how the people react.  How do the culture and situation of the Cheyenne impact on their legal decisions?  Why do you think Llewellyn was interested in the Cheyenne Way?

 

6.1 (postlude) and 6.2 Kropotkin

Anarchism.  Be able to define anarchism.  Describe the differences as we covered in class between Marxism and anarchism.  Specifically, do the two philosophies perceive the same problem?  (hint, yes).  Do the two philosophies agree about the role of the state after the revolution?  (hint, no).

 

Anarchist article on website

I included this for balance.  You need to be aware of the tactics and violence the anarchists employed to try to implement their beliefs.

 

6.3  Watchman--Kafka

What does this anecdote say about people and authority figures?

 

6.4  Bellotti

Be able to describe why the Court granted free speech rights to corporations.  What are the key arguments against doing so?

 

6.5  Medical Marijuana

Three points.  Be able to discuss the arguments for and against marijuana legalization, at least in some circumstances.  Be aware of how ballot proposals can be used to directly express the popular will.  Lastly, remember the federal supremacy doctrine we discussed in class (i.e. if state and federal law conflict, federal law controls).

 

Skip 6.6 (except as we discussed Romer as background to Goodridge)

 

6.6  Goodridge.  Gay rights.

Be aware of the developments in the law concerning gay rights, as discussed in the book and class.  Specifically, Bowers and Hardwick (1986) allowed states to make sodomy illegal.  Romer erodes that principle by overturning a state law forbidding local governments from enacting pro-gay anti discrimination measures.  Romer (1996), however, does not recognize gays as a protected group, such as racial or religious minorities.  In class, we discussed a recent case (Lawrence v. Texas (2003)) overturning Bowers.  Lawrence relies on privacy rights to forbid states from making sodomy illegal.  However, the status of gays as a protected class under the Equal Protection clause is not yet clear.

 

Goodridge establishes a right for same sex couples to marry in Massachusetts.  The U.S. Supreme Court has not yet ruled on this question.  However, as discussed in class, the Full Faith and Credit Clause may force other states to recognize a Massachusetts same sex marriage.  Congress passed the Defense of Marriage Act to try to make an exception so that states do not have to recognize out of state same sex marriages, but it is not yet clear if that law is constitutional.

 

Generally, Goodridge illustrates that the majority does not always get what it wants.  The Constitution sets limits to protect the minority from the majority under certain circumstances.  Also, these cases illustrate how the law changes over time.

 

8.1  Violence of Legal Acts

Law enforcement means just that: the state’s use of force and violence to get what it wants.  Society grants the state a monopoly on the use of force.  Each individual gives up the right to use violence against other people, in return for the promise of everyone else to agree likewise, with the state enforcing the deal. 

 

Note the disconnect between the court’s decision and the implementation of punishment.  Also be aware of the extreme power we put in the state, and the unfortunate tendency of people to do terrible things if they think it is required or authorized.

 

8.2  Darrow’s Address to the Prisoners

Why do people end up in county jail?  Darrow points to class distinctions, and differences in opportunities.  What does Darrow argue is the solution?  Note the anarchist thinking behind what Darrow is saying.

 

8.3  Rule of Law vs. Order of Custom

Be able to define the rule of law.  Before the modern state, the family unit was the key to maintaining order.  Note the revenge laws in the text.  Also, does law reflect the customs of society?  What happens if the law tries to impose rules contrary to custom?

 

9.1  Law is Terror Put Into Words

People have a mixed relationship with the legal system.  Why are some people cynical about the law?  Does that stop society from relying on the law to solve all its problems?  Is the view that individual rights limit the government, or are they just a smokescreen to preserve government power?  Does the law address root causes of social problems?

 

9.2  King’s Letter from the Birmingham Jail

How does King address the paradox of the civil rights movements using courts and legislatures to advance its cause, while simultaneously breaking the law?  When is civil disobedience justified?  What is natural law?  How does one decide which laws are just and should be obeyed, but others are unjust and should be broken?  Is civil disobedience an effective tool for political change?

 

9.3  Feminism and Porn

Know the history of the women’s rights movement in the U.S.  Be especially aware of the lack of rights before the Civil War, and be able to give some examples.  Note the conflict in feminism between the goal of building respect for women (banning porn) and setting women free (allowing women to choose to be in porn if she wants to).  Also, note the goals of the women’s movement over the years (voting rights, legal equality, and reproductive rights).

 

Let's stop here.  We'll put Chapter 10 on the final.