Lon Fuller v - HERO



1) Morality of Law 2

a) Lon Fuller v. H.L.A. Hart 2

i) Classical Legal Thought 2

ii) Classical Legal Positivism 2

iii) Classical American Legal Positivism (1865-1941) 2

iv) Modern Positivism 2

v) Classical Natural Law 3

vi) Lon Fuller's Natural Law 3

b) Problem of Unjust Laws 3

i) The Holocaust and Fascism - Banality of Evil 3

ii) Roe v. Wade 3

iii) Lochner v. New York 4

iv) Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring and Abolitionist Attorneys - Paul Finkelman 4

v) Dred Scott v. Sandford - 1857 4

2) The Politics of Law 4

a) Law and Power 4

i) Generalities Don't Decide Particulars 4

b) Legal Reasoning - The Relationship of Law and Rules 5

i) Legal Formalism (civil war - new deal) 5

ii) Liberal Aspirational Theory 5

iii) Legal Realsim (new deal ->) 6

c) The Legal Realists 6

i) The Nature of the Judicial Process - Benjamin Cardozo 6

ii) Pennsylvania Coal Company v. Mahon (1922) 6

iii) Transcendental Nonsense and the Functional Approach - Felix S. Cohen 6

iv) Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to Be Construed - Karl Llewllyn 7

v) Coercion and Distribution in a Supposedly Non-Coercive State - Robert Hale (1923) 7

vi) Property and Sovereignty - Morris R. Cohen (1927) 7

vii) Law Making by Private Groups - Louis L. Jaffe (1937) 7

viii) M Witmark & Sons v. Fred Fisher Music Co. - (1942) 7

d) Critical Legal Studies 7

i) Generally 7

ii) Legal Education as Training for Hierarchy - Duncan Kennedy 7

iii) Kennedy and Hierarchy 8

iv) Kennedy's Argument to Link Individualism and Neutral Law 8

e) Contextualism 8

i) Contiuum of objectivity - subjectivity 8

ii) Objectivity and Interpretation - Owen Fiss 8

iii) Fish v. Fiss - Stanley Fish 8

f) Critical Race Theory 8

i) Generally 8

ii) Persistence of Racism and Segregation 9

iii) Conceptual Framework (colorblindness) perpetrator 9

iv) Normative Framework -results 9

v) Antidiscrimination Law: A Crtical Review - Alan D. Freeman 9

vi) Brown v. Board of Education 9

g) Critical Feminist Theory 9

i) Emergence of Feminist Jurisprudence - Ann Scales (1986) 9

ii) Race and Essentialism in Feminist Legal Theory - Angela P. Harris (1990) 9

iii) Objectivity v. Subjectivity 10

iv) Jury of Her Peers - Susan Glaspell 10

3) Culture of Law 10

a) Generally 10

i) Does law have culture 10

b) Readings 10

i) Mashpee - James Clifford - 1977 10

ii) Mascaras, Trenzas, y Grenas - Margaret Montoya - 1994 11

iii) Cultural Defense - Battered Woman Defense 11

iv) In Defense of Culture in the Courtroom - Alison Renteln 11

v) Blaming Culture for Bad Behavior - Leti Volpp 11

vi) Anti Anti-Relattivism - Clifford Gertz 12

4) The Language of Law 12

a) Generally 12

i) What is it 12

b) Readings 12

i) Speaking Truth to Power : The Language of Civil Rights Litigators - Herbert - Eastman 12

ii) Empathy, Legal Storytelling and the Rule of Law: New Words, Old Wounds - Toni Massaro 12

Morality of Law

1 Lon Fuller v. H.L.A. Hart

1 Classical Legal Thought

1 Blackstone

1 A priori conceptions of natural law

2 natural law -( reason ( common law

3 no

2 Classical Legal Positivism

1 Command Theory of Law

1 Austin, Bentham

1 Seperatability Thesis – no necessary connection between law and morals

1 Critical of:

1 Natural law

2 a priori moral & legal principles

2 Command Theory of Law

1 orders backed by threats

2 power based definition

3 might makes right

4 a.k.a. The Imperative theory of law

3 Sources Thesis

1 State monopoly on violence and penalty

2 Power flows from the sovereign.

3 Man is the source of law

3 Classical American Legal Positivism (1865-1941)

1 O.W. Holmes

1 "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."

2 the life of the law has not been logic: it has been experience."

3 Post civil war destruction leads to cynicism of political & legal institutions. Distro of wealth and the role of institutions

4 Modern Positivism

1 H.L.A. Hart

1 Three Issues

1 How is law different/related to orders backed by threats

2 How is law related to morality

3 What are rules? Is law an affair of rules?

2 Keep Separability Thesis

3 rejects the command theory

4 Universal Features of Law

1 Rules forbidding conduct under penalty

1 running along a continuum of enforcement

2 Rules requiring compensation for injury

3 Enforcement of private agreements

1 Contracts, Wills, etc

4 Courts to determine what the rules are

5 Legislatures to make rules

5 Hart's List

1 Protect people- Tort

2 Protect property- Property

3 Protect promises - Contract

4 Enforcement with sanctions - Remedies

6 Minimalist notion of natural law

1 Upside down layer cake metaphor

2 Methodology

1 Humans are:

1 vulnerable

2 approximate equality

3 limited altruism

4 limited resources

5 limited understanding and will

2 Hobbes

1 "life of man, solitary, poor, nasty, brutish, and short." -Leviathan

3 Distinguish Morality from Rules

1 Importance

2 immunity from deliberate change

3 voluntary character of moral offence.

1 mens rea

4 moral pressure

5 Classical Natural Law

1 In our nature to recognize.

2 Contra sources Thesis

1 God/Nature source of law

2 Law is not what gov. says it is

3 Discoverable

1 There is a method to finding law.

2 Swift v. Tyson

4 Contra Command Theory

1 General Principles instead

2 Rules v. Standards

3 obedience v. obligation

5 Connection Thesis

1 essential link between law and morality

2 contra separability thesis

3 moral objective

4 anti-relativism

6 So …

1 there are objective right and wrong

2 all legal systems need conform

6 Lon Fuller's Natural Law

1 Procedural theories

1 Democratice

2 Substantive

1 Libertarian, Divine right of kings,

3 Internal v. External theories of justice

4 Procedural Approach / Internal Morality

1 Refutation of separability thesis

1 Morality is built into the law

2 Rules

3 Public knows about

4 Prospective

5 Comprehensible

6 Consistent

7 Can be Followed (help being black?)

8 Relatively Consistent over time

9 Enforced as stated

1 congruence between stated law and its enforcement

5 Much like Due Process

1 notice, equality, fair 3rd party adjudication

6 Applied to Third Reich

1 Fears positivism supports 3R.

2 Condemn on internal basis

3 Is not law

4 Reaches out to judges

2 Problem of Unjust Laws

1 The Holocaust and Fascism - Banality of Evil

1 Hart's Modern Positivism's Solutions

1 civil disobedience

2 encourage reform

3 possible since law ≠ morality

4 possible since law ≠ justice

2 Fuller's Natural Law Solution

1 civil disobedience

2 encourage reform

3 through insistence that law be moral.

4 because immoral law isn't real law

2 Roe v. Wade

1 Hart's view of justice

1 like things like, different things differently

1 under this view, pre-Roe regime discriminates against women

2 Morally Contravertial laws

1 Political Question Doctrine

1 Courts shouldn't decide

2 Let the people decide.

3 Pro Justiciability

1 tyranny of the majority

4 Con

1 judicial activism is ant-democratic

2 Rehnquist Dissent

3 Holme's Dissent in Lochner

4 Religious Belief and Public Morality - Mario Cuomo

1 Liberalism

1 Pluralism

1 value that gives rise to the ideal of morally neutral law.

2 Tolerance

3 Individual Liberty

4 Due process, reasonable person, freedom of contract, captain torts.

2 Private

1 Catholic

2 unjust

3 Morals are unchangeable

4 voluntary enforcement

5 moral pressure / community support

3 Public

1 just

2 Morality should be left out of law

3 right to freedom of belief

1 pragmatic

2 moral

4 Moral Neutrality in the face of profound moral disagreement.

5 Political Question Doctrine

3 Lochner v. New York

1 Freedom of K

1 implicit in 14th A.

2 substantive due process

2 Holmes Dissent

1 shouldn't decide cases on personal opinions. Run risk of being blind to the other side.

4 Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring and Abolitionist Attorneys - Paul Finkelman

1 Fuller critique of FSL on grounds of procedural due process

1 page 1801

2 Rendition of Anthony Burns is procedurally flawed. (1854)

3 Judge Loring open up procedure to Dana, some belief in Due Process

1 appearance of fairness

2 no real due process.

4 Some Acts as predicted by positivism and natural law

1 citizens engage in civil disobedience

2 emancipate AB.

3 abolition

5 Richard Henry Dana - Lawyer

5 Dred Scott v. Sandford - 1857

1 Is P a citizen

2 Interpret the law, not make it, that is for the legislative branch.

3 Interprets the decl of ind. and const. to not include African Americans.

The Politics of Law

1 Law and Power

1 Generalities Don't Decide Particulars

1 If the rules are life, liberty and property

2 intermingling of rules or rights creates need to make a choice. So, the determination can't be made with the rules. The nature of rules and their generalities prohibits concepts deciding particulars.

3

2 Legal Reasoning - The Relationship of Law and Rules

1 Legal Formalism (civil war - new deal)

1 Liberal Concepts As Basic Principles

1 liberty

2 property

3 life

4 feedom of K

5 due process, equality under law

2 Rule/Standard Based

1 pro - standards , contra rules

2 These Principles are rules, binding,

3 General, not narrow. More standard like.

4 A apriori rules to be discovered.

3 Legal Reasoning

1 logical deduction from general to particular

2 syllogism

3 objective.

4 Value Free

1 liberal ideal of legal neutrality

2 separability thesis.

5 Politics and Law are seperate

6 More

1 Propelled by Christopher Langdell

1 the father of case study

2 A priori Rules can be discovered objectively

3 Judges reason objectively from these rules

4 Law is value free

5 Laisse Faire economics

6 placeholder for classical legal positivism

2 Liberal Aspirational Theory

1 Aspirational Theory

1 aspirational statements about law

1 neutral law

2 Individualism

3 Restraint against state of nature

4 Freud - Holds instincts in check.

5 Duty to refrain from harming and

6 right not to be harmed

7 liberty and security

8 settle disputes on rules and principles

9 equalize, level playing field - J.S. Mill

10 Law and Order

11 Justice

12 Public Service/Altruism

13 Promotion of Morality

14 critque of activism

15 critique of judical altruism

1 requires omniscence - liberal distrust of those in power to determine right and wrong.

2 Critical

1 Law is just power

2 law(yers) enhance power difference not level them

3 circumstances vitiate rights (material inequality)

4 critique of neutrality

5 critique of individualism

6 functionalism (Cohen).

7 Realism

8 Situational sense, reveal value in holdings

9 Altruism

10 Substantive equity

3 Individualism

1 due process

2 private property

3 equal rights

4 focus on the rights holder

5 individual liberty over communal values.

6 Strictly Legal Equity

4 Altruism

1 Material equity

2 material imbalance vitiates equality of rights

3 If brute power differences are unacceptable, why is material or intellectual difference okay?

|Theory |Quintesential Problem |Power |

|Liberal Aspirational Theory|Paternalism |Political/Public |

|Critical Theory |Capitalism |economic/private power |

3 Legal Realsim (new deal ->)

1 Anti - formalism - Lochner

1 Concepts of Formalists too vague.

2 Formalist rules are contradictory

3 Judges must then therefore chooose

4 = rule skepticism

2 Legal Reasoning

1 judicial choices not dictated by rules

2 syllogism can't work where rules are general

3 judges must choose which general principal governs

3 Legal Resoning is not Neutral

1 contra- what judge had for breakfast

2 Everything filtered through judges's subjectivie perspective

3 law is not distinugishable from politics.

4 legal reasoning is policy choices

5 Liberal distinction between law/politics is a cover-up.

4 Rule skeptics

1 judges make rules

2 law is made up by judges

5 Seperatability Thesis

6 Predicitive Theory

7 Descriptive, positive legal science

8 Normative policy driven prescriptive.

9 Holmes – proto realist.

10 Critique of

1 neutral legal reasoning

2 personal property

3 freedom of K

4 free market

5 Lochner era court which uses judicial review to protect personal freedoms through an apolicitcal and neutral process.

3 The Legal Realists

1 The Nature of the Judicial Process - Benjamin Cardozo

1 thinking of the end which the law serves and fitting rules to the task of service

2 logic, history, custom, utility, and the accepted standards of conduct are the force which shape the progress of the law.

3 The law is made, not found.

2 Pennsylvania Coal Company v. Mahon (1922)

1 Brandeis dissent would overrule K and allow police power for the law.

3 Transcendental Nonsense and the Functional Approach - Felix S. Cohen

1 Substitute realistic, rational scientific account of legal happenings for the classical theological jurisprudence of concepts

2 Only two real questions, the rest are nonsense

1 How do courts actually decide cases of a given kind

2 How ought they to

3 Social Policy

4 Bad Man - or propheicies of the court no help to judges

1 external, while internal theory needed.

5 Altough he's wrong about the Restatement...

6 Before skepticism of science and experts

7 Felix Cohen's Functionalism

1 Judges's make law

2 look to consequences of the holding

1 instrumentalist

3 critique of formalimsm

1 veiling of consequential analysis

2 Veils sociological evaluiations

4 Open the process, bring in experts

5 Descriptive legal science

1 prohecies of court actions - Holmes

4 Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to Be Construed - Karl Llewllyn

1 Exposes the sham of legal formalism

5 Coercion and Distribution in a Supposedly Non-Coercive State - Robert Hale (1923)

1 Laissez Faire is in fact permeated with coercive restrictions of individual freedom.

2 property rights that the gov. protects is a use of coercion to stop any violent or peaceful infringement on the owners sole right to enjoy the thing owned.

3 worker can refuse to yield to an employers coercion but is under a legal duty to not use any money which owned by others - must eat.

4 wage work under penalty of starvation.

5 page 104. don't own property, work or starve.

6 income is the result of relative strenght of coercion.

6 Property and Sovereignty - Morris R. Cohen (1927)

1 property rights are exclusionary

2 dominion over property is dominion over people.

7 Law Making by Private Groups - Louis L. Jaffe (1937)

1 Power to contract is like making law that courts will enforce

2 coal miners work, under contract no to join union..courts enforce.

8 M Witmark & Sons v. Fred Fisher Music Co. - (1942)

1 Judge Jermoe Frank - dissent

2 Contract may be more than a private affair, it may vitally effect the interest of the public.

3 Freedom of Contract clashes with the Copyright Act.

4 Should protect the author and not the contract here under dispute.

4 Critical Legal Studies

1 Generally

1 critique of neutrality

2 critique of individualism

3 differences in power vitiate Individual rights (Hale)

2 Legal Education as Training for Hierarchy - Duncan Kennedy

1 ideological training for willing service in the heiracrchy of corporate welfare state.

2 mystification of "legal reasoning"

1 teachers convince students it is different from policy analysis.

3 accentuate real and imagined differences in student capabilities

4 lack of clinical training disables students from any future role but as apprentice in a law firm

5 Incapacitation for alternative practice

3 Kennedy and Hierarchy

1 Purpose of Legal Education

1 indoctrination into hierarchy

2 Purpose of Legal Career

3 Purpose of Law

1 capitalist tool, get out of state of nature

4 Kennedy's Argument to Link Individualism and Neutral Law

1 Nature of Legal Reasoning

1 Neutral

2 Rules Specific

3 Normative content of law - individualism

2 Nature of Legal Reasoning

1 Subjective

2 Standards/ Vague

3 Normative content of law - Altruism

3 Law Without Lawyers

1 ancient greece, medevial Europe, small claims court

2 Reasons for lawyers

1 complexity of law

2 detatchment

3 inequality of parties

5 Contextualism

1 Contiuum of objectivity - subjectivity

2 Objectivity and Interpretation - Owen Fiss

1 Fear of texts having no meaning.

2 Reaction to Deconstructionism

3 Nihilism that doubts the legitimacy of adjudication.

4 impossibility of objectivity.

1 general use of language

5 Threats to judical neutrality from

1 deconstructionism

2 postmodernism

6 Imperil legitimacy of system

7 Threats from nihlists

1 CLS'ers

2 Realisits

3 Fish

4 Derrida

8 Message or Messenger?

9 Disciplining Rules

1 constrain the interpreter

2 freedom is not absolute

3 some bounds of subjectivity

10 Interpretive Community

1 Appeal court

2 public reaction

3 executive non-enforcement

3 Fish v. Fiss - Stanley Fish

1 No rules - rules are texts, which in themselves need interpretation

2 Rules do not stand in an independent relationship to a field of action on which they can simply be imposed.

3 Can't be explicit enough to cover all situations

4 Fear of this is baseless

5 Texts, such as the constition can never be debased of meaning because they are constatnly being infused with it.

6 legal culture is constraint.

7 Critque of Fiss

1 Threat from human nature or

2 from deconstructualists

6 Critical Race Theory

1 Generally

1 Criticism of right. Formal Rights Theory

2 Challenges basic liberal aspirational theory

3 Focus on inequality

4 Purpose of affirmative action is to create enough exceptions to white privilige ti make the mythology of equal opportunity seem plausible.

5 Shift from economics to race

2 Persistence of Racism and Segregation

1 History

1 Legal History

2 Slavery

3 Emancipation

4 Plessy v. Ferguson

2 Economics

1 economic segregation

2 public or private

3 Culture

1 melting pot or not

3 Conceptual Framework (colorblindness) perpetrator

1 more compatible with individualism

2 meritocracy and competition

3 perpetrator's intent

4 formalist/ objective

4 Normative Framework -results

1 victim

2 formal legal rights

3 nothing without power

4 contra - inefficient, paternalistic

5 Antidiscrimination Law: A Crtical Review - Alan D. Freeman

1 Serves more to rationalize the existence of continued discrimination than to erradicate it

2 deep structural obstacles

3 blacks have insufficient merti or lack qualifications

4 results irrelevant

5 purpetrator - victim

6 color-blindness - all ethnics fungible

7 infinite series problem

1 how much change is necessary?

8 bourgeoisify

9 problem of formal equality

1 no difference in rights based upon wealth.

6 Brown v. Board of Education

1 rejects Plessy v. Furgeson

1 no seperate but equal

2 Was there change?

1 De Facto - In Fact

1 neighborhoods more segregated

2 expansion of private schools

3 tracking

4 testing

2 De Jure

3 Color Blindness v. Results

7 Critical Feminist Theory

1 Emergence of Feminist Jurisprudence - Ann Scales (1986)

1 differences between the sexes that objectivity does not allow for

2 listing differences is not a good strategy

3 Subjectivity is the way to go

4 Discard habit of equating noble aspirations with objectivity and neutrality.

2 Race and Essentialism in Feminist Legal Theory - Angela P. Harris (1990)

1 fallacy that essential woman experience can be isolated and described independenlty of race class or other realities of experience.

2 rift between black and white women over rape

3 Objectivity v. Subjectivity

1 In Law

1 interpretting legal texts

2 In Fact

1 Interpretation of facts

2 blind man parable

1 no problem of knowledge v. power

2 all of same power

3 traditional

1 one elephant

4 modern

1 no elephant

2 we are all blind men

4 Jury of Her Peers - Susan Glaspell

1 Different experience/methods

2 subjectivity finds more truth here.

3 Men

1 strict judgement

2 rational

3 looking for physical evidence

4 Women

1 leniance

2 mercy

3 empathy

4 irrational

5 detrioriation of the kitchen

6 dead bird

7 sewing differences show nerves

5 Views of Truth/Facts - Divided along race/gender

1 Conventional

1 objective

2 discoverable

3 objective method required to discover

4 Garat's elephant as cautionary tale

2 Modern

1 critque of obj.

2 subj is inesscapable (CRT, CFT)

3 there is no view from nowhere

6 Gendered/Raced - reenforces stereotypes

Culture of Law

1 Generally

1 Does law have culture

1 does law school have a culture

2 value of stare decisis and aversions to change

3 English Culture?

4 Values

1 consistency

2 conservative social values

3 uniformity

5 Anti-Values

1 change

2 diversity

6 Mixture

1 conservative change

2 Readings

1 Mashpee - James Clifford - 1977

1 Factors

1 body of indians of the same of similar race

2 united in a community

3 under on leadership or government

4 inhabitng a particular though sometimes ill defined territory.

2 Racialization of cultural group.

3 Testimony

1 Chief Earl Mills and his beads under his shirt

2 Teenagers

3 anthropologist

2 Mascaras, Trenzas, y Grenas - Margaret Montoya - 1994

1 Assimilation

1 into law

1 josephine v. state

2 estrangement from latino culture

3 continuation

1 catholic school

2 Legal Reasoning

1 abstraction leaves out culture

2 leaves out context

3 Cultural Defense - Battered Woman Defense

1 similarities

1 both applicable to the r.p. standard

2 Excuse / Jusitification in Sentencing

1 not guilty

2 mititage

3 1st / 2nd degree

4 context matters

5 state of mind mens rea

3 Problems

1 selective groupism

1 some minorities are covered, others are not

2 [ab]normalization

1 Abnormal behavior becomes accepted even though r.p. should not apply to the deviant.

3 License to Kill

1 sanctions violence against women and children

4 Relativism

1 in the pejoritive sense. denies the existence of moral standards.

4 In Defense of Culture in the Courtroom - Alison Renteln

1 need for a formal cultural defense

2 failure to take culturally motivated conduct into account violates the right to culture

1 International Covenant on Civil and Political Rights

3 Don't permit cultures to violate human rights and vice versa

4 socialized to think one way

5 theories of punishment

1 retribution

2 deterrence

3 rehabilitation

6 individualized justice

7 tailoring punishment

8 Average Mexican reasonable person

1 Chinga tu madre

9 Negatives

1 promotes stereotypes

5 Blaming Culture for Bad Behavior - Leti Volpp

1 Essentialism reinforces stereotypes.

2 Compare same behavior in two groups

3 Culture excludes the role of other disparities

1 school, class

4 Attorneys are complicit.

5 Our culture is also characterized by problematic sex-subordinating behavior.

6 Approach to combat gendered subordination across communities an approach that neither uses racial or cultural assumptions nor assumes that the U.S. is always a site of liberation.

7 us v. them perpetuation

8 racialization of culture

6 Anti Anti-Relativism - Clifford Gertz

1 not defend relativism, attack anti-relativism

2 to eject something without committing oneself to what it rejects

3 what looks like a debate about broader implications of anthropology is really just a debate about how to live with them.

4 finds provincialism more the real concern than what actually goes on in the world.

The Language of Law

1 Generally

1 What is it

1 descriptions of legal discourse

2 why these characteristics

3 desired/detrimental

4 used to express law

1 statute

2 constitution

3 cases

2 Readings

1 Speaking Truth to Power : The Language of Civil Rights Litigators - Herbert - Eastman

1 Problems with Pleadings

1 too rule based

2 compares the pleading the version of journalists

3 Rule 8 and rule 11

4 socialization of lawyers

1 abstract, legalistic discourse

5 Lawyer client relationship based on heirarchy

6 Psycological defense

7 Different voice theory.

1 women v. men

2 black v. white

3 if this is true, do we need lawyers for every group that are matched?

2 Empathy, Legal Storytelling and the Rule of Law: New Words, Old Wounds - Toni Massaro

1 Defense of law and the aspirational theory.

1 contra story tellin

1 rape shield laws

2 desire for objectivity

1 achievable or not, good goal

3 new terminology does not help

1 empathy, with whom should we empathize.

4 rules as a villian

1 most rules are guidlines

2 formalism encourages predictability

5 principles

1 homosexual rights impossible without priciple of individual autonomy

6 rule of law and empathy are not natural inevetible antagonists

7 too much emotion or formalism is no good

8 believes in the tension between the two.

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