| 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
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