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by: Kameron Skiles


Kameron Skiles
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Pierre St

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Pierre St
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This 60 page Class Notes was uploaded by Kameron Skiles on Tuesday October 13, 2015. The Class Notes belongs to SOCL 4471 at Louisiana State University taught by Pierre St in Fall. Since its upload, it has received 24 views. For similar materials see /class/222554/socl-4471-louisiana-state-university in Sociology at Louisiana State University.

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Date Created: 10/13/15
10212009 44000 PM 102109 o Traditional A case with facts laid out then you apply the existing law that applies the facts Then one can deduce what the courts will say 0 Law and facts are used to make a decision o Modern See box 26 ChiefJustice Stuart Hughes and William 0 Douglas 0 Decision first then use law and facts to support o Legal Reasoning 0 Judicial Restraint conservativejudicial philosophy The Court should defer to the will of the people s elected representatives of the legislative branch Ajudge should not interpret or apply a constitutional provision in atner that goes beyond the original intent of the framers Frankfurter originalism and strict constructionism n Katz v US the phone booth case said you have the right to privacy in spite of where you are based on the 4thamendment which protects us against unreasonable searches and seizures But where do you find privacy It s not there So you shouldn t be inventing it what judicial restraint argues Judicial Interpretation typically identified with those with a liberal or moderate outlook One version historicalreferential stresses the historical evolution of public and judicial understanding of constitutional doctrine another version conceptionalism focuses on a valid and coherent notion of constitutional concepts such as due process Equal Protection clause found in 14th amendment Traditionally we ve come to understand equal protection to serve everyone in spite of differences applies equal to everyone 0 Judicial Activism liberals as well as conservatives Declare law in accordance with the perceived needs of the times 0 Generally believe that constitutional doctrine should provide a fundamentalfor creating legal doctrine that is specifically responsive to the dom practical necessities of the present Roper v Simmons capital punishment for minors case Dealt with evolving standards of decency 10 26 09 Key terms and concepts Expect another classmade quiz Wednesday o Philosophical Concepts of Justice 0 Intuitive known a priori universal principle Utilitarian practical calculus greatest good Contractual by agreement as fairness Egalitarian organization of society as equality Not seen in Willie Francis case because as long as we live in a society that is stratified we will not see this form ofjustice There is no such thing o Applied Concepts of Justice 0 Commutative Formal legal entitlement Xba or xab in math means everything is equal in how it s being treated Calls for restoring balance following some wrongdoing or making redress in accordance with formal entitlement Aka legalistic corrective and restitutive o Distributive Equal division Aka primary moralistic and equitable Calls for the resolution through proportional merit or in accordance with a moral compass o Retributive In relation to blame or fault Retributive justice was realized in WF case when he was executed O O O o Procedural Justice 0 Willie did not receive procedural justice o Substantive Justice o Exclusionary Rule 0 Wouldn t have helped WF one bit because it wasn t created until 1961 0 Created in Mapp v Ohio 1961 Looking for guy in connection with bombing Clue that the guy was at Mapp s house along with a bunch of clues Police went to Mapp s house and she told them to get a search warrant and slammed the door in their face Her lawyer ended up there and they wouldn t let him in Finally they physically kicked down her front door First thing she says is where is the warrant She grabs the paper and sticks it down her shirt struggle They found nothing They went to basement found chest with pornography Charged her with having porn She appealed search had been illegal 102809 o Aristotle s definition ofjustice 0 Justice consists of treating equals equally and unequals unequally according to relevant differences o Distributive justice how a government distributes resources to its citizens o Retributive justice is a kind of communicative justice It is about how we determine guilt or innocence About punishing the guilty Concerned with people getting what they deserve Let the punishment fit the crime 103009 o Natural law principles are derived from naturedivinity o Timeless and universal 0 Valid everywhere 0 Law morality 0 Must serve common good or it s not valid 0 Aristotle St Thomas Aquinas Lonfuler externalinternal morality Legal Positionism Formalism law is selfcontained system of logic independent of social and moral considerations 0 Cheifly consideration whether legal rules are logical not whether they are just or fair 0 Austinia law is a law regardless of whether it s moral should be obeyed even if it s immoral o Kelsen pure theory of law Validity of law is simply whether it is generally obeyed o Lan dell develops case method of education into law schools and the pretty much become entrenched generally referred to as briefing Utilitarianism focus is on extent to which law promotes the greatest goodhappiness for the greatest numbers 0 Bentham and Beccaria o Humans act rationally and with free well and hedonistically Legal punishment should deter potential offenders general and specific deterrence n Punishment is most efficient when it is proportionate certain and swift Historical Jurisprudence law reflects the society in which it is found 0 Von Savi n people Law is developed by custom not by the arbitrary will of the lawmaker o m state of law changes from status to contract Sociological Jurisprudence Law has social underpinnings and impact 0 Ehrlich said there was a connection between positive formal law and what he called living law Positiveformal law is effective to the extent to which it conforms to living law social rules norms o Rosco Pound law in action and law in books law reflects and possesses the spirit of a II Big gap between what law says and what law does 0 Bradius brief relevance of social data 0 Brown v Bd of Ed o Legal Realism how the law works as opposed to how it is supposed to work in theory 10209 Absent 10409 Quiz 7QampA In natural lawthere is no separation btw law and morality as opposed to positive law in which law and morality are separate spheres Bentham is founder of legal positivism and is connected with utilitarian jurisprudence an approach criticized for its emphasis on practical consequences in meeting the greatest good objective as opposed to supporting higher principles that reflect concern with 0 0 rights of minorities o Legal realism and re similar in that both distinguish between law in action and law in books or between what judges do and what legal rules say they are supposed to do o The contemporary school of critical legal studies repudiates legal formalism and contends that law is politics o The concept of intersectionalism provides a link between the concerns of Critical Race Theory and Feminist Jurisprudence o In regards to Narrative Jurisprudence Louisiana ex rel Francis v Resweber is an example of lawasliterature and The Execution of Willie Francis is an example of lawinliterature l Bradwell v illinois 1873 law as literature Justices 81 vote against the woman 3 of 8 wrote concurring opinion 10212009 44000 PM 10212009 44000 PM SOCL4471 Test 2 9212009 51900 PM Herbert Packer 2 models on how the criminal justice system works o The Crime Control Model operates on a presumption of guilt Conveyor belt o The Due Process Modeloperates under a presumption of innocence Obstacle course Botched Executions o Governor delays Ohio execution after vein troublesquot O O O O O O Lucasville Ohio Romell Broom Set for execution Couldn t find a usable vein September 15 2009 Traumatized after failed execution o Killer executed the hard wayquot 0 O 0 Columbus Ohio Joseph Lewis Clark Vein problem o Lethal injections had been put on a moratorium for a while Supreme Court considered legal injection s legality according to the 8th amendment Crime reported o Committed November 7 1944 o Murder victim is Andrew Thomas o Mr Bienvenue is concerned because Thomas is late so he calls Thomas s sisterinlaw Mrs Zie She gets her husband Mr Zie and goes to Thomas s home Thomas s land shared with Bertrand LeBlanc They immediately notice the garage door is closed See gun shot through eye Mr Zie is a member of the police jury First to call is Claude Thomas chief of police for St Martinville and deputy sherifflbrother of Andrew Thomas What we call today as a heater case will get a lot of attention o The Van Brockins neighbors awakened around midnight from gunshots Automobile present on scene o Thomas s pockets were turned out this was a robbery o Murderrobbery felony murder a murder that occurs during another serious crime o In Louisiana 1St degree murder possibility of murder o Coroner s Jury convened Dr Yongue s o August Fusilier 92109 Ch of P Goldsmith August 3 1945 Chief of Police Goldsmith and fellows investigating at train station Suspect coming in they follow man off train Willie Francis happens to be in Port Arthur visiting his sister He looks suspicious so they apprehend him In Francis s wallet he has someone else s ID Francis confesses in writing to murder of Andrew Thomas Brown v Mississippi 1939 deals with coerced confessions 14th amendment due process case Whipped and tried to hang them to convince them to confess Ruling can t physically coerce confessions out of people Issues of bail are 8th amendment issues It doesn t say everyone has the right to bail just that bail shall not be excessive for those who have it Preventive detention you will be kept in custody because you are perceived as a threat to others or yourself or you re a flight risk As of Sept 26 Willie is indicted by a grand jury Grand jury for all who are facing life Also can be convened for other crimes Grand juries are given a very onesided view of the evidence because the only person presenting evidence is the Defense DA Pecot Grand jury can vote o True Bill indictment o No True Bill no indictment o Indictment itself is a formal document filed in court containing all the crimes that the defendant is accused of having committed One of several formal documents that the state of LA uses Willie Francis is brought in front of the 16th Judicial Court which covers Iberia St Martin and St Mary parishes The presiding judge is Judge Simon o Next step is the arraignment At the arraignment the defendant is going to enter a plea Simon knows that Francis is indigent so he makes arrangements for him to be represented by 2 very fine lawyers Mestayer and Parkerson Francis pleads not guilty September 12 1945 trial begins Francis Meeting his lawyers for the first time Their first action is to reserve the right to withdraw the not guilty plea later along the line if they so choose This means that he s going to be executed because at that time conviction for 1St degree murder carried mandatory death sentence Case 2161 State of LA v Willie We have no idea how Willie was made to admit his guilt No transcript is made of proceedings All we have is some notes We know this much 92309 There was first a jury selection and Judge Simon wanted to start off with a sample of 40 persons this is called a venire Next the voir dire judge will ask questions of potential jurors to help them determine if these jurors are biased 6th amendment says you want an impartial jury Pecot said something demanding that the jurors were unbiased ha Pinocchio You can dismiss jurors for 0 Challenges for cause you give a reason for dismissing them today unlimited amount 0 Peremptory challenges you don t state the reason Today we have only 12 of these for defense and 12 for prosecution 12person jury and 1 alternate is agreed upon Next time for opening statements Defense attorneys do not have to make opening statements while the prosecutors do Next Presentation of the evidence Prosecution goes first 0 Physical evidence you still have to call someone up to talk about it You have to conduct a direct exam ask questions then defense crossexamines the state s witness State of LA presented 0 physical evidence Testimonial all Francis evidence came in the form of testimonial We don t know what happened here Received and discussed Donald Black and The Behavior of Law Copy Figure 81 How cases move through the criminal justice system the juvenile justice system and the civil justice system High status victim Andrew Thomas case name is State of Louisiana v Willie Francis State serves as surrogate for victim Theory of partisanship 92509 See Chronology of Events in WF Case and Ancillary Material Handout 92809 Max Weber said you have different stylesmodels of law o Formal law rule of law business where he just gives the legalreasoning and logic o Substantive law where appeals are made to extralegal factors reasoning can be humanitarian ethical political religious economic emotional etc actually has nothing to do with the law at least as we understand it Deblanc decided to take this substantive tactic He argues that punishment is cruel and unusual and presents affidavits o One is from Dupois the barber his affidavit sounds much different than the testimony from the deputies and coroner c He also uses religious themes Daniel and the lion s den etc June 3 1946 gets word that sentence not commuted o Same day rallies J Skelly Wright Deblanc calls him and asks him to prepare for Supreme Court o Governor grants reprieve until further notice June 4 1946 US Supreme Court denies the writ June 11 1946 Skelly Wright gets the phone call from the clerk at the US Supreme Court Oops Writ was granted Deblanc Skelly are going to Supreme Court to make oral arguments in their cases on behalf of Willie Francis US Supreme Court kind of like a soap opera Chief Justice Stone dies so they have no chiefjustice Roosevelt had promised another justice on the court A J Jackson that he could have the seat Roosevelt dies early and Truman comes in and he s going to appoint Jackson until two of the other justices AJ Associate Justice Black and A J Douglas tell President Truman that they will resign if he is appointed Truman goes outside the court and appoints his friend Chief Justice conservative Vinson You ve gotta know this 0 Conservatives Ch J Vinson AJ Reed AJ Frankfurter AJ Jackson AJ Burton 0 Liberal AJ Black AJ Douglass AJ Murphy AJ Rutledge Feuds btw Jackson Black and Douglass btw Jackson and Frankfurter 0 Jackson and Douglass had been friends Then Jackson goes off to the Nuremburg trials where he is prosecuting Nazi war criminals and Douglass starts criticizing his handling of the trials and the ridicule becomes vocal and overt And so they have this big fallingout o The Feud with Black is over a legal case Jewell Ridge Coal Corporation v Local Number 6167 UMW United Mine Workers Union 1943 this case resulted in a 54 decision in favor of the UMW Local 6167 Jackson thinks it is Black that casted the deciding vote He was furious that Black didn t recuse himself from the case because he thought he should have Black s former law partner was representing local number 6167 After the decision comes down Jewell Ridge comes back and asks for a rehearing because of Black s association The court is voting to support Black and to uphold and say no we re not having a rehearing But Black in the meantime and justice Murphy is writing the opinion Black is running around and lobbying the people and making sure he has the votes he needed before the opinion even comes out So Jackson and Black are on the oust o Jackson s feud with Frankfurter this involves 2 related cases Minersville School District v Gobitis 1940 case about a school board compelling students to salute the flag and make the pledge of allegiance Gobitis refers to the 2 students who refused to do that because they were Jehovah s Witnesses They ended up getting expelled from school This was a 7 to 1 decision in favor of the school board Justice Frankfurter wrote the majority opinion Essentially he said that religious belief does not relieve citizens from discharging their political responsibilities Stone who died of a brain aneurysm cast the dissenting vote Jackson was absolutely livid over this dividis decision He gets his revenge a couple of years later in a related case The West Virginia State Board of Education vBarnette 1943This time there was a 63 decision against the school board Jackson writes this time the majority decision This was also a case involving Jehovah s Witnesses refusing to salute the flag Jackson s decision refuted Frankfurter s opinion point by point by point Frankfurter had a chance to respond in writing to Jackson because he was one of the three who objected He s the only one willing to say in writing why he is dissenting His response is very personal o Sociologists make the distinctions that in group relations we have 0 Primary relations Those that are intimate personal relations kinds of relationships that are characteristic of family friends and acquaintances 0 Secondary relations Impersonal relationships that people relate to one another on their professional positions teacher and student coworkers boss and employee These two can intermingle greatly Justice Scaliea and Justice Skinsberg have enormous respect for one another but they disagree greatly they are friends regardless 93009 see Louisiana ex rel Francis v Resweber handout 10509 Louisiana ex rel Francis v Resweber handout o Frankfurter s concurring WF case started at 16th Judicial District gt LA Board of Appeals gt LA Supreme Court gt Pardons Board gt US Supreme Court 11347 Supreme Court reverses oops Thurgood Marshall was a civil rights leader in the NAACP He becomes the first African American Justice of the US Supreme Court He argued in Brown v Board of Education 3 members of Pardons board care because they re all Catholics one day they will have to face their maker Catholic church against capital punishment The diesis says pope shouldn t interfere Frankfurter writes a letter to Lemann an old roommate of his an influential lawyer in LA to request to put pressure on people Lemann writes a letter to Judge Simon because he was a member of the Pardons Board and because he was his student at Tulane Law 10709 II Received handout Time Line in WF Case 10909 ABSENT 101209 Things to Review for Exam 2 Important Cases 1 Louisiana ex rel Francis v Resweber 19461947 the case in which the US Supreme Court was asked whether imposing capital punishment a second time after it failed in an attempt to execute Willie Francis in 1946 constituted a violation of the US Constitution The issues raised surrounded the double jeopardy clause of the 5th Amendment and the cruel and unusual punishment clause of the 8th Amendment as made applicable to Louisiana via the due process clause of the 14th Amendment Justice Reed wrote the majority opinion which also sided with Chief Justice Vinson Black and Jackson Frankfurter concurred Justice Burton wrote the dissenting opinion which Douglass Murphy and Rutledge sided with 2 Powell v Alabama 1932 About being represented by an attorney 14th amendment When questioned by DA Pecot Tureaud hinted at the lack of effective counsel on behalf of the convicted youth attempting to link Willie s case with this one involving the Scottsboro Boys wherein eight black youths were wrongfully accused of raping two white women The US Supreme Court had overturned their convictions by ruling that the poor performance of their attorneys deprived the youths of the 6th Amendment right to effective counsel The ruling of the case was that in capital cases defense lawyers must provide effective counsel 3 In re Kemmler 1896 Laid down the standard for the notion cruel and unusual when William Kemmler convicted of murdering his wife Tillie Ziegler became the first man sentenced to death in the electric chair Chief Justice Melville Fuller provided what would become the standard definition of cruel and unusual Punishments are cruel when they involve torture or a lingering death but the punishment of death is not cruel within the meaning of the word as used in the constitution It implies there something inhumane and barbarous something more than the mere extinguishment of life The case reasoned that electrocution was essentially humane on the basis of its reckoning that death would be virtually instantaneous and relatively painless Burton accepted Wright and DeBlanc s argument that to inflict upon a condemned person a repetition of the significant mental stress and anguish already suffered in the face of execution indeed constitutes of form of torture 4 Roper v Simmons 2005 Calls on 8th and 14th Amendments Ruling that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18 54 decision overruling upholding such sentences on offenders above or at the age of 16 5 Jewell Ridge Coal Corporation v Local 6167 1943 Justice Black declined to recuse himself from considering the case although Black s own former law partner was representing own of the parties to the lawsuit Local Number 6167 of the United Mine Workers This prompted the fury of Justice Jackson To further enflame his peers Black ended up or so it appeared providing the crucial swing vote that brought the Court to rule in his expartner s favor Justice Stone suggested that the Court issue an opinion saying that it had no authority to force Black to recuse himself that it was up to Black himself Black had approached Jackson in private If this opinion was issued he d said It would mean a declaration of war Shortly thereafter Jackson appalled by what he considered shameless judicial behavior told Black that he would not stand for any more of his bullying The opinion proved to be as divisive as Black had foretold a virtual declaration of war It marked the beginning of a feud that would shake the Court s foundations for years 6 Chambers v Florida1940 Where Black had gained a reputation as a fighter for the common man regardless of race Thurgood Marshall had argued before the Supreme Court on behalf of 3 black men who had been convicted for the murder of a white man in Florida Outrage had overtaken the white community and the sheriff s investigation consisted of rounding up 3040 black transients and interrogating them relentlessly until one or more of them confessed The interrogations had continued for an entire week At Marshall s behest the Supreme Court threw out the confessions of all 3 men on the grounds that they had been coerced and were therefore involuntary The Court further found that the convictions of the 3 men offended the due process clause of the Constitution Black wrote the majority commenting on the SC s role in righting indignities visited upon the defenseless common man by the high and mighty in a democracy Opinions like this one cemented his reputation for colorblind justice and compassion particularly in cases set in the Deep South 7 Minersville School Districtv Gobitis 1940 illuminated Frankfurter s policy ofjudicial restraint Walter Gobitis and his family were Jehovah s Witnesses Lillian and William decided that they would neither salute the American flag nor recite the Pledge of Allegiance in their local school They were expelled and Walter sued the Minersville School Board Case moved to Supreme Court after Pennsylvania courts ruled that the flagsalute law comprised an act of religious compulsion and thus violated the Constitution s guarantee to freedom of religion Frankfurter surprisingly voted to reverse the holdings of the Philadelphia courts and was assigned the task of writing the majority opinion his first as justice He argued that religious belief did not entitle one to shun one s patriotic responsibilities in general or the saluting of the flag in particular which he viewed as both an act of obeisance and as an instrument of national security This decision set of a wave of attacks against Jehovah s Witnesses across the country by ardent patriots who had been emboldened by a ruling that in their minds equated the refusal to salute the flag with a virtually treasonous act on the part of Nazi sympathizers 8 West Virginia State Board Of Educationv Barnette 1943 overruledthe Gobitis case Justice Jackson wrote for the majority and smashed Frankfurter s Gobitis opinion to pieces Frankfurter filed the lone written dissent 9 Plessy v Ferguson 1896 Plessy was jailed and found guilty of sitting in a white car of the E Louisiana Railroad He was one eighth black so he had to inform the conductor that he was not white so as to be arrested appealed his case to the supreme court of Louisiana and the US Supreme Court both of which upheld the guilty verdict As a result of the decision the separate but equal doctrine was quickly extended into other areas of public life including public schools restaurants and bathrooms Tureaud spent a lifetime in the courts attempting to undo the damage of the Plessy decision 10 Brown v Board of Education 1954 Tom C Clark who would be appointed by President Truman to the US Supreme Court in 1949 would later vote to end racial segregation by siding with the majority Truman said Tom Clark was my biggest mistake He s such a dumb son of a bitch Outlawed racial segregation in public schools 11 Bush v OrleansParish School Board19521955 Tureaud filed suit calling for the desegregation of public schools in New Orleans The lawsuit dragged on for nearly 10 years and it launched a decade of constant death threats targeting not only Tureaud himself but his family as well It was the second battle of New Orleans On the back of a Mardi Gras program Wright wrote the words that would eloquently formulate his opinion His wife encased the program in a plastic plaque which Wright took to Washington when Kennedy appointed him to the DC circuit court Important Amendments 5th due process and double jeopardy 8th cruel and Unusual 14th due process and equal protection Article 570 In LA constitution Writs Bill of Exception Historically at trial an attorney had to promptly take this after an objection was overruled in order to preserve it for appeal or else the objection was permanently waived In addition at the end of the trial the attorney had to submit a written list of all the exceptions which he intended to appeal upon which the judge then signed and sealed making it part of the trial record Habeas corpus a legal action or writ through which a person can seek relief from the unlawful detention of him or herself or of another person It protects the individual from harming him or herself or from being harmed by the judicial system Prohibition an official legal document drafted and issued by a supreme court or superior court to a judge presiding over a suit in an inferior court The writ of prohibition mandates the inferior court to cease any action over the case because it may not fall within that inferior court39s jurisdiction The document is also issued at times when it is deemed that an inferior court is acting outside the normal rules and procedures in the examination of a case In another instance the document is issued at times when an inferior court is deemed headed towards defeating a legal right Certiorari a type of writ seeking judicial review An order by a higher court directing a lower court tribunal or public authority to send the record in a given case for review Mandamus one of the prerogative writs in the common law and is quotissued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctlyquot A judicial remedy which is in the form of an order from a superior court to any government subordinate court corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing as the case may be and which is in the nature of public duty and in certain cases of a statutory duty It cannot be issued to compel an authority to do something against statutory provision May be a command to do an administrative action or not to take a particular action and it is supplemented by legal rights It must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it State Executives o Governor Jimmie Davis had his hands tied because state law that said governor could only pardon on recommendation of pardons board o Pardons Board 0 Lieutenant Governor Verret o Attorney General Leblanc o Presiding Judge of 16th Judicial Court Simon USSC o Majority opinion Reed o Concurring opinion Frankfurter o Dissenting opinion Burton o Vinson and Rutledge later come into play why 0 See pg 247248 Ignace Doucet especially important witness swore to the drunkenness of Vincent and Foster Provided 2 affidavits in WF case Grady Jarratt State Executioner o Tureaud These three meet Bush v Orleans Parish o Wright School Board at US District Court for East o Thurgood Marshall District of Louisiana Fed not state court What is Wright s new position 9212009 51900 PM 9212009 51900 PM 8262009 521 00 PM 82609 Friedrichs Chg 1 113 Administrative Agencies help the government o They create rules they administer these rules and they punish people in various ways for violating these rules These rules that they create are essentially laws Examples include FCC FAA FDA EPA OSHA IRS Traditional Approaches o Positivistic using scientific model in the study of humans 0 Donald Black s Behavior of Law Theory is an example of a positivistic approach o Humanistic a nonscientific approach 0 work done by historians and philosophers Odd Laws o Trial by Ordeal 0 One example he uses is trial by ordeal used in England who s laws on which we base our country s laws and continental Europe about the 11th century Before trial by ordeal the idea of taking oaths seemed to make sense because they were swearing before God who they revered that they were telling the truth By risking perjury you dare to face not only death but also the wrath of God 0 When trial by ordeal began they would do crazy things to test innocence or guilt For instance they would stick the defendant s arm into a cauldron of boiling water and if he showed no scars God was indicating his innocence o In another scenario they would drop the defendant s whole body into freezing cold water if they person floated they were guilty God and Satan would intervene cause the outcome 0 Also used redhot iron 0 Trial by ordeal was highly irrational highly structured highly procedural and highly ritual thanks to the Roman Catholic Church People could request trial by ordeal other times people were given no option 0 In 1215 trial by ordeal was outlawed by the 4th Lateran Council Pope went before the council and asked them to agree to get rid of trial by ordeal Some forms were still used in secular courts 0 Now what happens now that trial by ordeal is gone How will we replace this method to determine innocence What will be our substitute England decided to leave it up to juries a procedure we still use today 0 Models Law Society Autonomous You ve got the law and you ve got society and here in between we ll meet any kind of dispute that rises can be resolved by the laws alone Homologous law and society are virtually inseparable this is our system of law Interactive law and society s relationship is reciprocal one influences the other Friedrichs takes this model as a basis Laws of culture are universal there is ALWAYS a law in ANY society 82809 Critic Perspectives Radical don t like the status quo don t like the law bc it represents the status quo and supports the side of power they see society as those who have power the wealthiest the luckiest trying to maintain their exalted positions Boils down to haves and havenots The justice you receive is the justice you can afford 0 These are the conflict theorists Karl Marx is an example of this 0 Country Club Dungeonquot cartoon o Conservatives tend to like the system that exists but they too see that the system and their rights are being threatened but by the liberals Internal this is the insider s POV primarily lawyers law teachers judges legislators etc These are the people who create and enforce the laws 0 Andrew Jackson Supreme Court said he could not run Indians off the land He essentially said Make mequot they couldn39t because he as an executive enforces the laws o Hypolexis there is too much law being created and enforced o Litigation Explosion being sued or suing is increasingly a more feasible possibility Class Action Suits Just because we have seen a rise in lawsuits over the years does not mean that we have seen a rise in trials They are often settled in ways other than going to court This is the case in both civil and criminal law We really see Fredrichs following an interactive approach in this section Current Issues o Sanctity of life 0 Abortion Roe v Wade Justice Roberts and Justice Leto hope to throw the balance of the scale to overturn Roe v Wade 0 Euthanasia Oregon only state to allow physician assisted suicide In Europe only allowed in the Netherlands and Belgium 0 Death Penalty historically has been maintained since the beginning of our country the US Supreme Court has never ruled that the death penalty is unconstitutional the majority of the public still support the use of death penalty in 2008 Gallop Poll 64 were in favor of death penalty This is the lowest percentage point in 30 years 35 states use the death penalty including Louisiana 83109 o Capital Punishment No longer can persecute people who are mentally retarded In 2005 US Supreme Court said that we cannot persecute anyone who committed a crime when they were under 18 o Rights Issues 1 Bowers v Hardwick 1986 related case the book doesn t have is Lawrence v Texas 2003 Bowers was charged with violating a Georgia criminal statute by committing sodomy with another male in his own house in his own room Charged a complaint against the constitutionality of Georgia s law The US Supreme Court declared that the constitution does not confer a fundamental right against homosexuals to commit sodomy i httpenwikipediaorgwikiBowersvHardwick 1 idea of due process a found in the 5th amendment which applies to the members of government i 5th amendment No person shall be deprived of life liberty or property without due process of law is governmental fair play b another is found in the 14th amendment for the states and of equal protection also found in the 14th amendment i Nor shall any State deprive any person of life liberty or property without due process of law 2 Lawrence v Texas 2 Houston police officers got reports that gunshots were being fired in Mr Lawrence s home so they entered his house and they saw him and another man Tyran Gardener engaged in a sexual act Since Texas law forbid certain sexual contact between homosexuals they were arrested charged and then convicted They appealed their conviction which went through to the US Supreme Court The Supreme Court set aside the convictions of Lawrence and Gardener The court held that this Texas statute that made this a crime violated the due process of laws and the 14th amendment the previous Bowers ruling was overturned o httpenwikipediaorgwikiLawrencevTexas staredecisis precedent 3 Katz v United States 1967 Privacy issue brings up 4th amendment the right of people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated htt enwiki ediaor wiki Katz v United States gambling business across states thought to be doing business through a public phone booth Police set up recording device on top of the phone booth which meant that they could only hear one side They did this without a warrant Convicted Katz of transmitting gambling information from Boston to Miami to another place Began appeals process and finally ended up in the US Supreme Court Katz won because they should have had a warrant and he had an expectation of privacy o Rationale the 4th Amendment protects people not places What a person knowingly exposes to the public even in his own home or office is not a subject of 4th Amendment protection But what he seeks to preserve as private even in an area accessible to the public may be constitutionally protected quot 9209 Criminal Justice System Has lots of components and lots of people that somehow hangs together 3 major components o Police Over 13000 police departments in US 0 Federal US Secret Service Customs ICE Immigration Bureau of Customs Border Control FBI US Marshalls ATF DEA IRS Each has their own jurisdiction but sometimes there is some overlap There has been ongoing turf war like between FBI and ATF 0 State 4950 states have something comparable to a state mnde poHdng agency 0 Local In LA we have 64 parishes and therefore 64 sheriff s departments In addition to that we have municipal police deparUnents o Courts see P48 diagram courts tend to have jurisdiction over the courts below them 94 US District Courts 0 Federal Magistrate Courts 94 District Courts 13 US Circuit Court of Appeals and US Supreme Court 0 State 50 separate state court systems not even called by the same names All are hierarchical like in the federal court system Louisiana in order of highest to lowest power LA Supreme Court LA Circuit Courts of Appeal we have 5 of these LA district courts mainly deal with majorfelony offences 42 of these 5 family ampjuvenile courts3 Cty and Par sh Courtsthese count because they get state levels 0 Local LA 205 mayors courts 390 justice of the peace courts o Corrections responsible for more than just the people who are locked up think Cricket there is probation probation agents overgghtLIheansandunethodsofdeaHngthefmandalBsues people being sentenced to be electronically monitored house arrest halfway houses restitution sentences community service treatment and rehabilitation programs parole and early releases 0 Federalfederalpnson systen1 0 State each state has state prisons although not every state has a prison for women Hawaii is one When they are convicted of felony offences they are sent to another state 13 adult prisons we also have state juvenile prisons o Local64 pa sh p sons and evenrnorelocaljaHs 9409 Quiz Wednesday Focus on the key concepts and other endofthechapter notes The Juvenile Justice System In the 1800 s there was a child separatist movement They want laws created that will allow them to intervene in the lives of children that were being neglected or abused and to have some sayso in how children were being dealt with They favored what is called the Doctrine of ParensPatriae ParensPatriae The state has the responsibility to look after the wellbeing of our children The state can actually step in and take the role of parent if and when it becomes necessary 0 In 1899 Illinois is the first state to create some kind of separate juvenile court system 0 It took until 1949 before every state had created a juvenile justice system Kent v US 1966 Morris Kent in 1959 was 14 years old living in the District of Columbia He was apprehended and charged with a number of house breakings and purse snatchings He was adjudicated a delinquent This means that a juvenile has committed an act which if committed by an adult constitutes crime He was placed on probation Fastforward to 1961 an intruder breaks into the apartment of a woman steals her wallet and rapes her The fingerprints were identified as belonging to Morris Kent He admitted that he was guilty of not only these offences but other offences as well The judge advised Kent that he was going to waive ofjurisdiction him to the adult court He s tried and convicted of 6 counts of house breaking On the rape charge the jury found him not guilty by reason of insanity Morris Kent appealed his decision and the United States Supreme Court reversed his decision The Supreme Court held that any juvenile court is going to waive the jurisdiction the juvenile has to have the assistance of attorney they have to have access to the full record and the judge has to put in writing the reasons for this waiver They were saying his due process rights were not met In re Gault1967GerylGault was 16 years old Him and his friends made a number of obscene phone calls to his neighbor Ms Cook The police arrested Gault and took him to jail for questioning They carried on with proceedings Because Gault couldn t testify on his own behalf and initially wasn t advised of his rights or given an attorney he gets sent to the Arizona State Obstruction School until he was 21 He appealed and the supreme court reversed the decision This case deals with 6th amendment rights Juveniles do not have the right to a speedy or public trial or trial byjury They do have the right to be informed of the nature and cause of the accusation the right to confront witnesses against them right to call witnesses up on their behalf and the right to an attorney In re Winship1970 Samuel Winship was 12 years old in NYC where he broke into a woman s locker and stole 112 out of her purse He got charged with larceny theft Under NY law he was considered a delinquent The juvenile court judge told the prosecutor that he didn t think that the evidence that the prosecutor presented was sufficient to establish Winship s guilt beyond a reasonable doubt But NY had a statute that said in juvenile cases all you need is a preponderance of the evidencemeans that you way the evidence of one side against the evidence of the other side and whoever weighs more that s how guilt or innocence is chosen So Samuel Winship was adjudicated a delinquent and was sentenced to go to a training school for 18 months and then subject to a yearly review so they could keep him locked up until he was 18 This case got appealed and the US appellate court refused to hear the case and the US supreme court took it and reversed the ruling because they did not use the beyond a reasonable doubt standard So the US supreme court said anytime you have a juvenile court preceding you have to use the beyond the reasonable doubt standard In Louisiana you have to be 14 to get waived o In Florida there is no minimum age 24 states don t stipulate a minimum age 91109 C Wright Mills Anyone can develop a sociological imagination Make a connection between personal biography and history When it comes to the imagination it also means that we re willing to see personal troubles as public issues or problems Make a list of important characters DA Pecot Sheriffs Ozenne New Iberia Resweber St Martin Fredrick Francis Bertrand DeBlanc Andrew Thomas Father Rousseve Dr Yongue Witnesses gave sworn testimony in form of an affidavit These got attached to a grief which got sent to supreme court justices Founder of the Nights of White Camellia Mr LeBIanc doesn t care if Willie is found guilty or innocent for the crime He supports capital punishment but he is a man who says If you screw it up the first go round you don t get to do it again Andrew Thomas There is a connection between Mr LeBIanc and the victim Thomas LeBIanc coowns the property He is very different He s white highly respected and a business man owns a pharmacy His murder leaves behind a family and a community who mourn his loss 8262009 521 00 PM 8262009 521 00 PM W j 4hhu W W MUM 090 pc ACM mu w W er 50mm BDYMUYMD W mebU gt swwhmw k bumomxng V I 39 16w mu Y W 0m AMHUW DYNAv Wt WUEUMQ 01 H1 somuhmb ro quot7 30quot mu 39amp QUWCA mm ML50 hwv Wv 9U JWpWLLN MOM 0W ww m Wh m Eek map w 36w ECW0va Como 39T n mL m 003 am cwmrc mow m Jpvwwxhw vome o W of MCQL opeud 1mm 0 Wm m Low wt w Wad gvuwuswt mm wt ow m V WW M mum in auraLuzquot V mm W CNDWMG u mm 01 szhul x x anm ck mum kpqu momma W mwo Z W moqo 06km WW Nab WM 3 W0 YMMV 0W M 0L WNJULV WWhM M wuwumf WWW wwm 4 mammwz wowmxm mw be Wracm m m mmwm 393 W er mm W m MW 12 WW CU 50mm wpwww W W 6W hm W MW OJQWMW MM 11230 Warsu wok mu hm i opau 394 trmmo m wwx W 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mane alga 0L6 W WM W txth QM 3W7 HM Law an TW A 39 MYW QDWLU D WWW 0 MW W COME mm W wmwl 9px o3 tow bums um xx yummu xr 3 MM Dugwa gt 5mm gwcymuhvt w WW mm ppm mmmw oak 60W WWW twmmg m Wm 03 W V 39 BU UCALQXLL V V V 11 JVUW Im AAm mmWU we mwmm cw Mk mmwkbb 39 W m Hammad x0 WWW 0 va ck V V V V W0gtMMWWLOV u xmmmw D1V v V V Ammo mm n 3 QMM wsxgwwmu 2 W103 I i 39W m m39hrwwm r MMVLUH Mauvng QUKW b 0 WW0 W 39 mom it m xsz mm W 5 7 RM MKMVDSY 0 v umhwo Wummmmu V V V V wmxm fur 2 949mm Paman bmot a MOVKVV nmpup 4 b wlthhxv9 a amwkaanvwb Wm Wammxw V 39r He w 0 new V y MMngth uneapvuMUL i W105 a M m DwaV k umww aw V 3919 U lt1me 0 WWW Om OL Mia V mmxr kawk mm x m 906MOMm omp mww 2 mm V V Lg ow om JQDcszmn mkd vWVC9ym 0w EVUVZ V H VV WM 0 WW5 wow Wobmiaw 0 quotmm a nohm of 3W th Wnivxxdm YMde WWUWW QMW 45min MZU39L wxB VWWM wmmmmmj Wed smm of poWM WWM aches1h WWW ULWNW39 mu mwwmam mme V VV V V V V M 0 KW Wat mm W 05gt Cm mumWM DWWWmUx Meme WW MUD amp mmwimwo m 1 mamaquot 7 WWW 6kth W Ybgt 09 W W 0 Ox mou xwum M mwww qut 3p KWXA m Wm M mkm 9 MWWJ MY 9m LU qwme cm onWU W n a W V0 bWX W 1w m mom s wHUeM awaymm Qwng pHWM Jr humw wwwsbku salogu39 m uewp 0an av 0k va W39 lm W twpqu M0065 W 11112009 55200 PM 111109 o Commodities Over time Marx contended use value gt exchange value gt fetishism of commodities worship 0 Worship occurs when we forget that these commodities owe their existence to us They have no value if we hadn t made them 0 Jerry McGuire show me the money o Commodity Exchange theory of law Legal fetishism theoryquot 0 Pashukanis In the marketplace each personsubject finds himselfherself in a definite relationship with another At the precise moment of the exchange 3 ideas materialize n Although there may be vast differences btw 2 commodity owners each treatsrecognizes the other as equalequivalent gtequaity a Each recognizes the other as having willingly entered the transaction gtfree will a Each recognizes the other as the rightful property owner proprietorship gtprivate property The constant transfer of commodities creates the appearance of a bearer of rights equality freedomliberty and property which then take hold in the law which guarantees the transaction Thus the creation of the juridic subjectreasonable man in the lawthe legal person which is mentioned on page 154 who is the abstract bearer of certain rights As with commodities quality has been transformed into quantity n Here this means that used value gt exchange value Quality has been transformed to the abstract bearer of certain rights This results in legal fetishism n Idea that everybody under the law is equal and that everyone enjoys freedom and liberty and everyone has right to property and the pursuit of happiness Pashukanis will say is an illusion created by the law We live in a system of inequality on social class religion gender race ethnicity 113009 Weber s discussion of different forms of authority or legitimate power How Weber analyzed Forms of Law and Legal Thought 0 Decided to focus on two dimensions on his analysis of law The extent to which law is Formal n Said the law can be either high in formality formal or low in formality substantive o Formal high System Employs standards principles and logic that are internal or intrinsic to the legal system 0 Law makers and law finders apply rules and procedures that are totally internal to a given legal system 0 Decision maker is bound by some general body of laws and procedures for its application o Substantive low System opposite of Formal high system Use of rules and procedures that are outside the formal system Another way of saying that is that it employs external or extralegal criteria They may be moral ethical religious ideological political emotional The extent to which law is Rational n Rationality may be high rational or low irrational o Rational high System Follows some criteria of decisionmaking that s applicable to all like cases 0 Another way to think about it is to think about a system of law has generality meaning that all similarly situated subjects are dealt with in the same way 0 System has some predictability about it o Irrational low System Similar cases are dealt with differently The same kind of case can have different outcomes 0 Little predictability o For the purpose of analysis you can think of legal systems in terms of their degree of formality and their degree of rationality see table below High Rational Low Irrational High Formal Formal Rational Formal Irrational Low Substantive Substantive Rational Substantive Irrational 0 Do these exist perfectly IRL No 0 Formal Irrational Law Employ means that they cannot be controlled by intellect Formal to the extent that rules exist concerning the appropriate procedures to be applied Irrational to the extent that the decision is not predictable Hidden rules applied differently to different people Similarly situated people receive vastly different outcomes Examples n Divine revelation o Oracles and prophets o Trial by Ordeal a Magic o Asande tribe Sudan poison 2 chickens the outcome determines the innocence of those involved If the 1St chicken dies the party is guilty If the 2nd lives guilt is confirmed If 1St lives innocent If 2nd dies innocence confirmed o Tea leaves casting stones etc o Substantive Irrational Law Each concrete situation determines the decision Substantive to the extent that any one external criteria is used a No general norm is being applied Irrational to the extent that even similarly situated individuals with the same standard whether it is moral ethical political religious etc applied against them will be treated differently or will end up with different outcomes n Outsiders can t predict the outcome Examples n Jury system c The case where Maude pistolwhipped Benny Their verdict was not guilty and they used jury nullification considering external criteria a Islamic Shariah Law o Khadi Moslem judgemagistrate Justice 0 Substantive Rational Law exists where a particular external extralegal principlecriteria is employed External meaning outside the dominant and state supported body of laws and procedures used in their enforcement n Eg ethical imperatives political maxims religious doctrines etc a Political Maxims o Marx s Notion of Justice From each according to his abilities to each according to their needs this is a substantive standard that is applied to all cases This standard replaces current standard of formal equality Once some principlecriteria is chosen and applied uniformly decisions will have a higher degree of predictability they will be more rational Examples a Canon Law a Talmudic Jewish Law 0 Formal Rational Law logically formal rational Law is rational to the extent that decisions are based on existing unambiguous rules Law is formal to the degree that the criteriastandards used for arriving at a decision are totally internal or intrinsic to the legal system Law is logical to the degree that the rules of the product of conscious construction by specific ways of reasoning Examples a Common Law o Originating from England a Civil Law o Predominates in continental Europe 0 o Traditional A ta o Char A ca o Legal A la 12409 What form of sacred law captures Weber s conceptualization of substantive irrational law Islamic Law Formal Rational Law development of capatilism monarchies and nation states How do you get modern law Outcome of development of certain kinds of economic development See Max Weber and Logically Formal Rational Law handout 11112009 55200 PM 11112009 55200 PM


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"There's no way I would have passed my Organic Chemistry class this semester without the notes and study guides I got from StudySoup."

Janice Dongeun University of Washington

"I used the money I made selling my notes & study guides to pay for spring break in Olympia, Washington...which was Sweet!"

Bentley McCaw University of Florida

"I was shooting for a perfect 4.0 GPA this semester. Having StudySoup as a study aid was critical to helping me achieve my goal...and I nailed it!"

Parker Thompson 500 Startups

"It's a great way for students to improve their educational experience and it seemed like a product that everybody wants, so all the people participating are winning."

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Refund Policy


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