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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