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Class Notes for Sociology of Law

by: Mariana de la Maza

Class Notes for Sociology of Law SOC 2167

Marketplace > George Washington University > Sociology > SOC 2167 > Class Notes for Sociology of Law
Mariana de la Maza
GPA 3.8
Sociology of Law
Fran Buntman

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About this Document

Detailed notes on Galanter lecture on March 3rd
Sociology of Law
Fran Buntman
Class Notes
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This 13 page Class Notes was uploaded by Mariana de la Maza on Wednesday February 25, 2015. The Class Notes belongs to SOC 2167 at George Washington University taught by Fran Buntman in Winter2015. Since its upload, it has received 126 views. For similar materials see Sociology of Law in Sociology at George Washington University.


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Date Created: 02/25/15
February 19 2015 Notes Weber 0 Big on Institutions 0 Interested in how big things shape all of us 0 Trying to see if he can learn from history and how societies organize themselves 0 Saw different ideas of leaders being there by virtue Rational Authority 0 Looking at the now Capitalism advanced industrial democracies and he understood the primary form of authority as rational authority 0 Focusing on the more contemporary period he sees that the basis on which societies is ordered as according to the set or rules 0 The idea that there are systems you need to follow he argues emerges from a rational way of organizing society 0 Rational we usually see it as a neutral term or positive term and Weber thought it too 0 How he thought of clarity under this particular authority is that you needed laws 0 There is a procedure to follow 0 Recognize that while you have the necessity for those rules they can have the exact opposite effect Rules that were made to make things better sometimes you lose sight of the point of the rules and you focus on the rule itself 0 Calls this the iron cage of modernity iron cage of rationality o ldea that you are so rule driven that you lose sight of the point of rules Concerned with the state 0 Tension between substance and intent in a focus around bureaucracy o Idea of bureaucracy Did not mean it as a bad word not as a pejorative Somewhere between an empirical reality In these complex cities we need methods processes rules 0 We cant have everybody do the same thing Pejorative idea of bureaucracy is linked to the iron cage of modernity the idea of focusing on the rules for the sake of the rules rather than the purpose Weber is more of an institution person than a place person 0 A brave intellectual recognition he recognized something that was necessary and also had a dark side to it February 19 2015 Weber governance and law 0 Weber s domination this means by which government achieve compliance How could power be exercised Fairly neutral term ability to achieve compliance 0 Can be translated in practice as negative and positive practices that achieve domination Domination is composed of power and authority 0 Power idea that you can exercise will over another or get someone to do something you want them to do 0 Socialist capitalist primitive etc Could be consent coercion persuasion etc Ex Don t think of domination as necessarily negative illegal or antidemocratic though it could be Concerned with power 0 What is means for concrete institutions and organizations of social life 0 Covered more in sociology than political science because he is interested in broad structures that shape the institutions rather than the internal institutions 0 Power is always going to be about a relational dynamic between parties 0 Contingent not stable can and will change 0 Whether you are exercising power through consent you might need to do new formsthings in order to continue to dominate Not stable and it is relational Concerned with the ability of the government to achieve compliance 0 Not in the realm of the state but governance more generally Emergence of large businesses the need for governance in those contexts In an ideal world you could have power that re ected true choice where somebody chose in a neutral sense 0 Carry on the will of another 0 Common to exercise power through coercion the threat of force or force itself However Weber says in a contemporary society power is exercised through authority through the idea that the follower is accepted the nature of the authority the nature and the legitimacy of the authorty February 19 2015 0 Following the rules because you accept the rules Complies as if the follower wanted to obey o The obedience rather than the true acceptance 0 The authority in domination 0 Different ways of exercising power coercion authority true choice 0 Authority is when a follower obeysfollowscomplies as if the follower wanted to obey because of the merit of the authority gureleader obedience rather than necessarily true acceptance Ex Assumption of legitimacy of leadership organizational hierarchy or similar 0 Can have obedience without having true acceptance 0 Authority as obedience rather than true acceptance 0 Authority and Legitimacy 0 Does say legitimacy is the best way to govern 0 Limits to legitimacy no ruler can make all orders legitimate 0 quotAuthority is the most stable form of power precisely because followers take obedience as a binding moral imperativequot o Similarities among ideas of authority legitimacy and hegemony o Weber does not anticipate that you are ever going to get a situation of particular authority Recognized that all leaders has to constantly strive to achieve legitimacy and authority on the basis of accepting the rightful place of the ruler All about the legitimacy of the state Legalrational authority ruledomination 0 Law and its associated structures of power are assumed as rational and right Is it limited to western style in uenced liberal democracies 0 Law is fundamental in achieving legitimacy Law and rule help achieve legitimacy knowing where you stand having the predictability of rules in itself facilitates legitimacy Belief on the legality of those rules to issue commands February 19 2015 O 0 Not uncommon for a president Comes from rm belief in legalrational authorty There is a feedback rule in terms of the 0 Characteristics of law under legalrational authority 0 O O O O 00 Process gt content Intentional creationcodi cation Law must follow broader norms and code Ex Constitution Written Impersonal quotPower is depersonalizedquot That is why the rule of law is meant to apply to everybody Apply to rulers as well as ruled Idea that to make a government legitimate the gvt Has to follow certain procedures The standard the idea that we have to follow the law Organizational or administrative form bureaucracy Impersonality of bureaucracy can lead to iron cage of rationality modernity bureaucracy Procedural gt substance therefore law can be immoral oppressive etc Separation of fact and value Sociology of Law February 24 2015 LegalRationalAuthority 0 Organizational or administrative form bureaucracy o lmpersonality of bureaucracy can lead to iron cage of rationality modernity bureaucracy 0 Procedural gt substance therefore law can be immoral oppressive etc quotSeparation of fact and lawquot We don t to let people hold on to them while we go to 0 We give law enforcement laws to take them but it gets abused 0 Policy and rules are not set in stone people simply have to respond to law Dynamic policy 0 Iron Cage Ex In respect to the three strikes law and in California people could be sent to prison for 25 years for stealing a slice of pizza Weber says the point was to get violent and sexual offenders off the street not drug addicts Overcrowding Ex Prisons To point out the lack of law and governing procedures in the Unites States 0 So in response prison reformers brought in a list of rules about how you needed to operate 0 Now those rules have become so rigid that they are stopping more sensible responses Union Rules Workplace need changes but the Union Rules says X even if it doesn t make sense to it you stick to it because that is what the rule says 0 Weber says you need to have that predictability of what the rules are and institutions are in order to know how you are going to proceed Focus on methods to know how you are going to proceed Typology of Legal Systems Weber s forms of law adopted focus on rational law comparing formal vs substantive o Formally rational law Procedural focuses on law 0 Substantially rational law Focuses on the point of the law 0 Irrational law 0 Sociology of Law February 24 2015 Idea of law that comes from another disembodied place known by experts who can interpret them but not for everybody There are still formal procedures 0 In the formal realm substantive law The most important goal we have in our legal system is to adhere to the values What are our values Equality religious faith security Values need to be discerned in rational ways Politicians or leaders who can tell us what the correct interpretation is 0 Formal or procedurally rational law Brings together both ideas 0 That legal order is autonomous and professionally Procedures towards nding truth 0 In terms of something that if noble and discernable rather than something known to the religious leader or magician 0 Something that illustrates substantive and procedural Formal law assumes equality 0 Makes it unique to capitalism democracy contract 0 Also unique to secular government because we have an assumption of secular equality Rules required a secular society you cant have religious authorities 0 Society cannot be based on religious The way the legal profession itself develops helps build up these idea 0 Modern profession of law builds on idea that there needs to be a body of professionals who have an abstract assessment of rules to help facilitate its application in society 0 Have their own hierarchies bureaucracies institutions February 26 2015 Notes Civil Law Discussion Questions What you learned about civil law Legal profession and education Are lawyers allowed to reject offers without checking with clients How was appeal possible without checking with clients Why could Facher say plaintiff could not testify Questions Did the Bribe the judge Early questions to jury Before plaintiffs thought case was over What people learned about Civil Law in the movie Most civil cases are settled Most of the work is done behind the scenes 0 Not in courtroom A lot of it has to do with role of emotions Money very important 0 EX Which cases are dealt with Only 1 in 10 cases reversed on appeal Hierarchy of monetary value of victim Empathy between client and lawyer Civil Law 0 Generally addressing wrongs through litigation tends not to be very successful Often successful in a kind of partial 0 Parties involved plaintiff and defendant I Plaintiff says I have been wronged in a way courts understand it 0 I As a potential or actual legal wrong 0 In this movie they represent personal injury lawyers I They use tort law I Tort idea of a contract written or an implicit contract and a way in which it is violated and challenged 0 A low of tort law has been created extensively by civil law 0 Wrongs have to be met by restitution settlement but especially REMEDY I Recognized by a jury 0 Mostly talking about legal wrongs and the idea is that if the court finds on behalf of a person they need remedy restitution 0 When cases are settled in most cases there is no acceptance of wrongdoings by the defendant February 26 2015 I When we talk about a settlement as a remedy in some senses it is a remedy in that the plaintiff is getting the defendant to recognize a wrongdoing by giving money 0 But the nature of the settlement will differ and the defendant will give the plaintiff money but none of the recognition I Especially when the defendant has deep pockets money is part of making it go away sometimes I Tort law is developed somewhat similar to common law 0 The fact that a case is settled especially if it involves a powerful defendant is important because it will often prevent a precedent to the defendant different from going to court 0 If an institution has invested interest in a kind of law they don t want to lose the individual case but most importantly they don t want an unfavorable precedent I This is why they settle with money I An unfavorable court ruling could really affect them 0 Emotions and Empathy 0 Law about being about rationality etc but in this movie emotion played a great role I When Jan could have taken to 25 mill but he increased it 0 Deposition I The process by which both sides really get to hear what the other side is going to say I A deposition helps good attorneys figure out what the other side is going to say I Getting information from both sides I What the two sides decide to disclose becomes an issue of law 0 In practice there wasn t an appeal 0 To what extent is the courtroom a place that we can redress wrongs in society 0 Tort room is a place where this can happen 0 Logic of tort law 0 In practice we do find evidence that goes in all directions and we really need a historical To what extent does that role Contingency One of the problems with tort laws as a solution of These cases absolutely help but they are not sufficient to change or impact the big picture on various issues 0 How could Facher say plaintiffs were not going to testify O Facher was able to make the legal argument what the jury simply needed to consider was the geological evidence and what kind of evidence it has for the legal question February 26 2015 0 Had the case gone to appeal one of the areas the would have appealed on is that the judge gave the wrong orders to the jury personal relationship and history did make a difference in the sense that they came from the same world and saw things in a similar way 0 Not in an unethical way necessarily 0 Law is a game of strategy 0 Emphasis on strategy 0 Want to shape the rules of the game I Facher did it on a small level March 3 2015 Sociology of Law Galanter 0 Persistent vs One Time players I Galanter 1974 RP vs OS 0 RP persistent involvement courts 0 OS Occasional involvement 0 Wants to know if the courts actually play a role of equalizing I Can the courts help us make a more equal society 0 Redistributive I What is happening at the time that would lead to this question context 0 Can the law be used for redistributive purposes 0 Civil rights movement 0 Brown v Board of Education achieving social change to make a more equal society I Racial quality but it involves a redistributive element 0 Roe v Wayde I Fundamental status challenge through the courts 0 Issues of economics I War on poverty 0 There is a heightened attention to the need to focus on economic equality in the US I When Martin Luther King is assassinated he was giving a speech to striking garbage collectors 0 They had up signs that said I am a man I It reminds us of the connection of other kinds of rights I Tells us about the limits of the law there is a constant tensiondynamic between using the law to achieve social change and using civil society to make the law work 0 Constant struggle 0 There is a strong concern across the political spectrum with the idea of improving economic equality in the US I Can courts be used to achieve that redistribution 0 That is how he comes with the idea of RP and OS because clogged on the top of the Supreme court it says everyone is equal under law but in practice you need to realize that there are different types of people in terms of their access to the courts and their typology O Broadly speaking he says if you want to understand it you need to understand how and why the haves come out ahead of the havenots I His answer in brief is have has knowledge and resources to be able to utilize repeat access to the courts not just to develop expertise through the constant practice 0 Repeat players improve their odds of getting ahead because March 3 2015 Sociology of Law 0 0 RP have the advantage that they can try and establish rules in their favor and one of the ways to do that is that they are selective in terms of which legal action they get engaged in Civil Law Courts and Justice Connections between Galanter and civil action I Lawyers have more of an obligation to the system and their clients Plea negotiations are not the sweet deal but this isn t always true I Prosecutors and defense lawyers need each other to keep the system working In movie families are one shotters Travolta is a repeat player Galanter draws a continuum In terms of the way Galanter draws squares I Repeat player vs a repeat player representing one shotters RP vs RP 0 Biggest are more towards the extreme degrees 0 Lawyers by definition are repeat players Instances where repeat players use the system to their advantage I Minimax 0 Minimize the maximum damage I Settlement How to use what Galanter offers as a toolkit How does Galanter help you develop a toolkit Rules Parties I How do you structure the parties to be at a greater advantage You turn your one shotters into an alliance an alliance of repeat players with deep pockets and extensive strategies in terms of experience Brown v Board of Education I Sweat v Painter and Gaines NAACP On one level the Brown represents outsiders 0 Disadvantage of not having money on your side Treat it as a legal strategy and a political strategy but you bring on board others that will support you I Develop a grassroots strategy an elite strategy You want to change the institutional and rule environment Take the long view I You build up to overturning a precedent that has been present for years Framing Myths March 3 2015 Sociology of Law 0 There are some profound myths about civil law in the US 0 In theory law is accessible to all of us to right wrongs 0 Myths about civil law include I The is an extreme litigious society I The courts are clogged with frivolous lawsuits I Liebeck V McDonald s Restaurants I Courts are good to delivering justice and correcting worngs I True now and then but mostly the exception proves the rule that courts are relatively limited in their ability to right wrongs I Core rules of civil litigations 0 1 Legal standards I Statutory or common law or regulations 0 2 Jurisdiction I Mostly state or federal 0 3 Check her p0werp0int I Process of civil litigation 0 Two parties plaintiff bringing the suit and defendant I Pleadings I This is what someone has done to me factual and legal bases jurisdiction and remedyreliefdamages sought I Discovery I Information gathering by both sides I Depositions oral interrogatories written and documents evidence 0 Overdiscovery abuses can happen I People can ask for more than they are entitled to and you would have a motion where the defendant s lawyer will say he is asking for something that is more than reasonable I Common in divorce I Motions legal rulings I Pretrial conference often leading to settlement I Settlement in formal language is a resolution of dispute brought to court by mutual agreement of parties I Can occur any time after civil suit is filed I Judges can be more or less involved I Most civil cases result in settlement sooner or later I Litigation can be a tool or bargaining tip in dispute including to encourage to settle O Other key terms I Standard of proof March 3 2015 Sociology of Law 0 Preponderance of evidence 0 If it does go to trial it is a lower standard of proof than beyond a reasonable doubt 0 Litigable grievance necessary for a case to proceed toward trial 0 Need to have a basis in the law to bring a case to court


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