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Summary Of Law Essay Research Paper Summary

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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