Summary Of Law Essay, Research Paper

Summary of law:

Rules

By, or for, society

Opposite of anarchy

Provide benefits (stability, fairness, protection)

Common will or elite design

Enforced by coercion (punishment)

Allocates resources

Is a special process

Involves certain people to carry it out

Weber Law

Law is a set of rules

Laws are punishable; they can be enforced through coercion

Laws are enforced by persons assigned to this job

Laws are given consistency and predictability through courts

Rational Law

What weber s definition is know as

Man made law as a tool for governing self

The rules we live under and by

What if we disagree with the law?

You can disagree, but obey

You can disagree and not follow the law because it violates higher principles, or NATURAL laws

Natural law traits

Consist of basic, universal principles regarding human behavrio

Principles rest on morality (can be religious)

Generally agreed upon consensus

Higher than manmade law; does not depend upon a gov t for it legitimacy

Still involved anytime somebody violates Rational Law

Anti abortion trespassers

Civil rights protesters marched, even with judicial order against it

Those that harbored fugitive slaves

Rational law tradition (2 systems)

Civil law (continental europe)

Foundation of law is a written code

Judges decide based on code

Common law (us and england)

Was unwritten and depeneded on precedent and tradition. Cases ought to be decided the way similar cases had been decided in the past

In old england, the unwritten decisions were passed down from judge to judge

America introduces codifcation to COMMON LAQ

Writing the law down lets more people read and know the law

Codification makes a map to decide issues of law

Map is good guide but it doesn t deal with every contingency

Process of legal reasoning (3 steps)

1. find a case similar to the one you have

2. find what rules of law was in the case

3. apply that rule of law to present case

State vs Pendergrass (1837) NC criminal case

Assault and battery

Schoolteacher whipped a student with a switch

Decision

Authority of the teacher equals the authority of a parent

Parents have power to correct kids behavior with moderate physical correction

Teachers may administer moderate correction

MODERATE CORRECTION= cannot result in permanent injury and the teacher cannot use authority to cover malice

Joyner vs Joyner (1862)

Mrs joyner wants to divorce her husband

Husband whipped, switched, and verbally abused his wife

Decision

What were the circumstances of the punishment

The wife must be subject to her husband

Every man must govern his household

Look to genesis in the bible to see how a man must act

Law gives power to the husband over the wife

COVERTURE a doctrine over women at the time of the decision.

Feme sole- applied to a wowan on her own

Femme covert- applied to a married woman

COVERTURE says that a husband and a wife are united as on in marriage and the only one existing for legal purposes is the man

State vs Black 1864

Wife commit quarrel with the husband

Hsuband pulls wife to the floor but restrains himself and does not strike her

Decision

Law will not invade the domestic forum or go behind the curtain.

State vs Rhodes 1868

Assault and battery the husband strikes 3 blows with a switch the size of his fingers

Decision

If the subject had not been the wife, the incident would have been batter without a ???

Court ssaid it was not exactly like BLACK since the husband was provoked in BLACK

Permanent injury is still wrong

A moderate correction that does not produce permanent pain or injury is ok. It no longer must be determined if malice is a factor or not.

State v marbry 1870

Man threatens his wife with a knife and attempts to strike her with it. She gets away and no permanent ijury is incurred.

Decision

Permanent pain and injury stands as precedent

In this case, the husband tried to stab his wife so he should be guilty

Precedent is 2 faced. If precedent is supportive, a lawyer binds self to the precedent. If the precedent is contrary, the lawyer makes the argument that it doesn t apply because the current instance is different.

State v Oliver 1874

Intoxicated husband threatens to whip his wife and whips her hard

He is found guilty (there were witnesses, one of which had to restrain the husband) but appeals

Decision

All of the old cases were decided properly

How can a man assault his wife without malice or cruelty present

The conviction stands

The precedent is held, but seen in a new light

PRECEDENT

Legal system is conservative and rooted in the past

The system is not static. It is ever changing

Precedent is a framework and therefore limiting.

Arguments are made based on precedent

It sets the situation into the alternative universe of the law

The Nature of law and values

Professionalism and Values

Lawyers are bound to the rules of their profession

Ideally, personal and professional values are the same.

Realistically, this is impossible

What happens when they conflict?

Rules of professionalism are supposed to take priority

Reading 3.2 simple living and hard choices by m. Flannery

Is a good dr in rural appalchia

A good dr never accepts friends as patients or patients as friends. This is impossible in her situation since she is in an extremely rural setting.

Dr saw patients with health problems that were due to a lifestyle unavoidable

Flannery believes personal values should overrule professional value sometime

2 traditions in western law

Inquisitorial (france, germany, spain)

Court searches for the truth

Judge is the primary fact finder

Adversarial (us)

The advocates for each side are central to the case

Evidence is introduced by the sides

The judge is more a referee

The truth will come after both sides present their best case

The lawyer has the interest of their client only. The lawyer does not work for the court, truth, or justice

Doing the very best for a client may present a value dilemma

Reading 13.1 ETHICS OF ADVOCACY

Loyalty of lawyer runs to client, he has no other master

Advocacy may include concealing the truth.

Not even truth is a lawyer s master

Advocacy requires a lawyer to start with something to be proven and this is as true of facts as it with propostitions of law he will waste a lot of time if he goes in with an open mind

DETACHMENT this is necessary to survive as a lawyer

Treat the whole thing as a game, a contest

Look at it as a craft and work on ur craftsmanship

P342 ???3

Lake pleasant, new your murder case

Confidentiality is critical to the adversarial system

13.4

things that lawyer can control during litigation are personal presentation and the presentation of evidence

13.2

when a case is decided, it then has the backing of the state on its side.

The justice system is far less adversarial today, then when the article was written

LEGAL work in the US

Lawyers enjoy a monopoly in legal services

US has more lawyers per capita than anywhere else in the world

Dimensions of the law profession:

Regulation of access into the profession

Control behavior of people in the profession

Ability to remove people from profession

Can t practice w/out license

Have a higher profile

Practice of law is stratified of legal work

Why stratified?

Best rise to the top

Certain kinds of legal work is more challenging

The elite try to keep themselves at the top (elite self preservation)

Legal status equals client status

11.1 Tocqueville 301

tocqueville arrives in the US in 1831 to explain the US to European readers. His book was Democracy in

America and one of the first things he analyzed was lawyers in the US. Few pts about lawyers

Inherently conservative people

Less afraid of tyranny than of arbitrary power

Like order, predictability, and legality more than freedom

Probably necessary to maintain democracy

Act as the break on unchecked democracy

Very important since the us has a common law system with precedent

European countries use a civil code with civil law

US citizens did not know the law and needed a lawyer.

Scarcely any political question arises in the US that is not resolved, sooner or later, into a judicial?

He presented an overall positive, uplifting portrait of the aristocratic, essential lawyer class

EVOLUTION

1790-1870

Profession a profession has internal rules that all members must abide by. Rules for admission, etc are present. The profession retains a certain degree of power and authority over the line of work. Did no exist before 1870

Free market law anybody that wanted to practice law could. People didn t want professional standards because they were seen as too undemocratic.

Practice simple laws

Lawyers were typically solo or with only one partner

Lawyers were gerneral practitioners with no real specialization

Most lawyers spent most of tehir time in the court room

Quality of a lawyer was judged by ability in the court room

Education potential lawyer would aprrentice to a current lawyer

Would also help to learn the law

Law schools no the typical route

1828 harvard law had 128 and 1840 only 9 universities affliated with law school

1870-1945

Early professionalization

1870 new york bar association formed for the first time in NY city

1878 bar association is formed

set their own rules and policed their members

standards of admission were set (bar exam)

organized boyd now look out for and advance the interests of leg profession

volume of work grows, epecially regulatory law

emergence of the legal hierachy

Modern la

Law firms develop, practices began to specialize, less time spent in court room

Education

Law schools

Provided efficient way of training enough new lawyers

Efiicient way of developing new layers into hierarchy

1870 + had been to law schoo

1910 2/3

1945

consolidation of professionalism

practice: law firm becomes more coropate and less a family organization

1945 60% solo

1975 fewer than 50 firms with 100+ members now hundreds some with thousands

legal work explosion in environmental, civil rights, and internet law service

11.2 Big Casino

Grutman is a well known civil attorney

Says lawyers are

Weapons can be offensive and defensive

Cabbies get u from point a to b but they need to be paid. Only take u where u want to go

Alchemists make gold from nothing, investor

Contestants compete in the contest of ur trial

Doctors repair the damage to your life

Con men con the jury, client, and other lawyers

Boxer get paid only when they win

Gunfighter hired not only to protect u, but to ensure that they can t be hired by somebody else and used against you

Lawyers do something of value for their clients

Translate client s interests into legal settings

Have a degree of power in the relationship

Conflict between lawyer (who have power) and client (who has the need)

1870 christopher langdell dean of the law school harvard. Changes

purpose of socrates method is not to hurt and not a form of sick pleasure for the professor. Attempts to set student to think like lawyers and forces them to accept that personal opinion does not matter

12.1

Law school is a total institution

Idividual identity is removed and replaced

Similar to tearing down a person and rebuilding that person, as is done at the mental institutions and in military training.

Mortification stripping down of individual identity. This is followed by the gradual rebuilding of the new self