POSC 130 Lecture Notes Week 2 8/30-9/1
POSC 130 Lecture Notes Week 2 8/30-9/1 POSC 130
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This 7 page Class Notes was uploaded by Adrianna Robakowski on Friday September 2, 2016. The Class Notes belongs to POSC 130 at University of Southern California taught by Alison Dundes Renteln in Fall 2016. Since its upload, it has received 4 views. For similar materials see Law, Politics and Public Policy in Political Science at University of Southern California.
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Date Created: 09/02/16
Lecture 8/30 3 Schools of Jurisprudence in Western Tradition Philosophical School/Natural Law Law and Morals overlap St. Thomas Aquinas (12251274) = divine inspiration Lon Fuller = inner core of morality Link between law and rational character of “man” Implications for fidelity to law/civil disobedience Analytical School/Legal Positivism Law tied to the state COMMAND THEORY (comparative theory) Law and morality are distinct from each other John Austin the rule as backed by force H.L.A. Hart The Concept of Law Tied to the state, must have a state to enforce Nomads, smaller societies, religious groups (NOT LAW) International law is not law “Law is the union of primary rules and secondary rules” Historical School “It’s not law on the books, it’s law in action” Karl von Savigny (17791861) “Volksgeist” Law as common consciousness of the people Sir Henry Maine = legal evolution (stage theory) Highest level is British Constitutional System [Skeptical of stage theories] what is the basis ??? Sociological jurisprudence (Holistic approach) Law in contest Interests at stake Skelly Wright (example) Eugen Ehrlich's “living law” How law actually functions in society Legal realism = “gastronomic” jurisprudence Use economics, psychology and political science in order to understand the law Jerome Frank = psychological approach, judges as father figures Karl Llewellyn = economics and anthropology Law and Society Movement Still a society with meeting and a journal Critical Legal Studies (CLS) Duncan Kennedy Harvard and Stanford Law Deconstruct legal categories “Trashing” law Feminist Jurisprudence, Critical Race Theory, Queer Theory, Critical Latino/a Theory All splinter groups from CLS Concerned with overgeneralizing CRITICISMS OF NATURAL LAW Vague and nebulous What is morality ??? Who defines morality Ethnocentric ??? To what extent is civil disobedience acceptable? In what circumstances? Hard to get people to AGREE on norms CRITICISMS OF LEGAL POSITIVISM (law and morality are separate) Too narrow in scope Potential for political manipulation Who defines what a state it ??? Anyone who can enforce laws? Failed states? Fixation on rules What validates the rule of recognition? Dangerous to separate law from morality HART (positivism) and FULLER (natural law) DEBATE Whether the Nazi legal system counts as a legal system Case of the Nazi Wife Reported her husband to the authorities for saying bad things about the Third Reich Wasn’t legally bound to do so He was arrested and sentenced to death Not excused, but instead sent back to the front lines as his death penalty Five years later, the wife was prosecuted for illegally depriving a person of his freedom Argued that she committed no crime under Nazi statutes Court says she did violate a law and that Nazi law “wasn’t valid” Problem of Retroactivity Can’t go back and change a law/punish retroactively Fuller says Nazi law was never a law Hart says that the courts need to acknowledge retroactivity Both agree on punishment [US Constitution doesn’t allow retroactivity] Her offense = illegally depriving a person of his freedom under German Criminal Code 1871 Berlin Test Case of Border Guards (1991) 20 year old crossed the British Wall to the West and was shot Shooting consistent with East German Law Soldiers versus Superiors Radbruch Formula To get around rule of retroactivity Also a principle of justice Sometimes justice is worth more than retroactivity Retroactivity was a big issue at the Nuremberg Trials Peter Quint’s concern about future prosecution by the ICC (International Criminal Courts) [European Court of Human Rights] CRITICISMS OF HISTORICAL SCHOOL Parameters too broad and inclusive/all encompassing (USC and NCAA as legal systems?) How to determine the “common consciousness” Difficult to distinguish between law and custom [Micro, National and International Legal Systems] PAUL BOHANNAN (Dean at USC) doubleinstitutionalization Relationship between law and custom Norm that is initially important and custom Doubleinstitutionalized, becomes LAW Problem of phase Sometimes custom is the problem and law needs to be used to change custom (Brown v. Board of Education) CONCLUSION Importance of theoretical approach to analysis Compare and contrast thinkers in each school The Role of the Lawyer (Legal Ethics) Bar association and Codes of Ethics Attorney client privilege Keeping confidences of client (few exceptions) Conflict between professional ethics and morality [Adversarial (accusatorial) system = one party against another party (common law)] Different than civil law because judge screens people to see if they should be prosecuted Exceptions to Attorney Client Rule Self defense Client intending to commit a crime/bodily harm Client consents Judge orders it LECTURE 9/1 The Role of the Lawyer [Legal Ethics] The conflict between professional ethics v. morality (personal) Model Rule: put forth by American Bar Association Needs to be adapted by the state you are practicing in Bar Associations and Codes of Ethics 1. American Bar Association (ABA) History of bias Reactionary stands on free speech/loyalty oaths Created to make rules for legal profession and boost image of lawyers Rules updated and delegates vote to change the rules Recommendations that can be adapted by states Not mandatory to be a practicing lawyer (being a member of your state's bar association IS) 2. Regulation of the legal profession ABA Model Code of Professional Responsibility State bar associations Self regulated industry Few disbarred (Rhode Professor at Stanford/research) Lawyers judging lawyers [Pro bono work = free work] For the public good Should it be required? ETHICAL ISSUES Fees Morality ??? Attorney Client Privilege Definition: The right and duty to withhold information because of some special status or relationship of confidentiality What is covered by the privilege? It must be a communication It must be a particular sort of communication Purpose: To ensure people get the best representation possible, lawyers get all the facts Protects the “presumption of innocence” = cornerstone of common law EXEMPTIONS 1. Consent if client consents to disclosure 2. Court Order if required to be revealed 3. Future Acts Old Rule (more broad) if clients intends to commit a crime New Rule if client intends to commit serious or substantial bodily harm (1.6B rule) 4. SelfDefense if client sues the lawyer the malpractice The Belge Case (New York) “The Lake Pleasant Bodies” Case 1. Facts: Robert Garrow charged with child molestation and subsequently murder assigned attorneys Frank Armani (child molestation) and Francis Belge. Garrow mentions he had killed 2 other people, lawyers went to where they said they were and WERE there a. Unsolved murders in the community 2. Lawyers did not tell authorities. Offered the prosecution info about other murders if they would be lenient, but they were denied. Belge Legal Proceedings Lawyers had a press conference and said they had know about the bodies but couldn’t say anything Indictment for violating NY public health laws (notification; right of burial) Accomplices after the fact Obstructing right to justice Constitutional Rights 5th Amendment (Right against selfincrimination) 6th Amendment (Right to counsel) Balance individual rights against harm to family and society Indictment DROPPED Bar said “the state bar acknowledge that Belge needed to remain silent” [Attorney client privilege is PARAMOUNT] Comparisons 1. Scott Peterson rep by Mark Gangos (California Business and Profession Code) a. “It is the duty of an attorney to maintain inviolate the confidence, at every peril to himself to preserve the secrets of his client” 2. Bernardo Case (Canada) a. Lawyer, Kenneth Murray, withheld evidence i. Advised by the bar to ask to be excused and then give up the tapes ii. Was prosecuted for obstruction of justice etc. iii. Eventually was acquitted 5 years later Nix v. Whiteside (U.S. Supreme Court) (1986) Issue: Whether the 6th Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial Jury didn’t buy the self defense so was convicted instead of second degree, but first degree murder Look at all state courts Filed Habeas Corpus Court of appeals ruled in this favor Supreme Court says that attorney client privilege is not upheld when there is perjury involved The Court relied on Strickland v. Washington which requires showing serious attorney error and prejudice [harmless error rule] The Court concluded that there is a specific exception from the attorneyclient privilege for the disclosure of perjury. The Court said this is required by legal ethics. CONCLUSION: A defendant's right to effective counsel was not violated when his attorney used threats to dissuade him from committing perjury US v. Dunnigan (1993) “Defendant has no “right to lie”” (90) Issue: Whether a defendant can deny charges and if subsequently convicted be given a longer sentence Facts: Sharon Dunnigan denied being part of a cocaine ring but was convicted later The US Supreme court ruled no “right to lie” The Freedman Trilemma (Professor Monroe Freedman) The lawyer is required to: Know everything To keep it in confidence To reveal it to the court [Other Contexts] Enron Scandal responses SEC Policy ABA policy saying lawyers may disclose wrongdoing [Toyota Product Safety Code] In house lawyers Protecting consumers ? Swidler & Berlin v. U.S. (1998) Effect of death on attorneyclient privilege Supreme Court said death has no effect on attorneyclient privilege
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