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135 Cards in this Set

  • Front
  • Back
two things that define each other. law influences society/ vice versa.
mirror thesis
law is a mirror of society, such as the laws reflect the values of society
anglo american jurisprudence
mix of many things and layers: roman law, greek philosophy, french-spanish law, American common law, english common law, etc...
natural law
assumes source of authority is God (hobbes + rosseau)
hobbes (on state of nature)
man needs society, as state of nature is very scary
hobbes (on social contract theory)
in order to have security, we must give up some liberties
rosseau (on state of nature)
"noble savage" idea, man works together until advent of property.
rosseau (on social contract)
needs social contract, but with very limited government
legal postivism
law should be written and posit
goal of having written law that everyone can learn (US constitution)
separation of powers
provides a paradigm of delegation of powers. every branch has different functions and roles
checks and balances
each branch ches the others
procedural justice
law on the books
substantive justice
actual practice of laws
the power relationship between state and federal power
individual rights
rights protecting individual citizens from government overreach
rule of law
no one is above the law
rule by law
government is above the law
founded by Foucault, distributed info on prisons and worked with prisoners
punitive methods
moving from retribution to rehabilitation. public execution becomes outdated. rise in penitentiary.
based on notion of penitence. locking people up to sit and think. much like a monastery. overpopulation has led to an inability to perform such a function.
scientifico legal complex
scientific method to punishment progresses as we focus more on the soul. psychiatrists focus more on the methods of punishment to rehab the soul and punish.
undesireable hereditary characteristics. idea that we can create an ideal society.
sentencing reforms
customize sentence based on the crime. development of parole and juvenile courts. look at individual crimes.
you become a subject of a nation rather than an individual
prison where all cells are circular, constant surveillance. become a subject being watched even if you are not. end up watching yourself -> become a subject of yourself
believes in liberation through the mind. anti superstition and anti supernaturalism
metaphysical dualism
two worlds simultaneously exist. physical world, world of senses. intellectual world, world of reason. exist at same time. wise men sees the world in its intellectual value in its idealized form.
philosopher king
one who has left the cave and eses what really exists. he should be leader to set the others free. power over himself- power over others
cravings for physical needs (artisans)- making food, etc
minds capacity for emotions (soldiers)- have to have a strong heart
intellect or understanding (ruler)- dealing with rationality
platotic ideals
the ideal model of being
socratic method
about debating and answering with own debate and counter questions
predominant influence of one party over another. cultural perspectives come to represent the dominant group. when in it, see it as "the way things are"
refers to conquest and control over another's goods, which in turn creates revenue.
civilizing mission
'white mans burden' need to take care of asia. have a responsibility to modernize asian countries
bloodthirsty indian cult, used by british to justify invation
manifest destiny
land given to us by god to take over becasue we are superior
system of racial segregation, process of hegemony witha white domination. africans seperated by three races (white black and colored)
aproach to teaching, new idea of political application to teaching.
how history is compiled. new idea that history is highly subjective.
legal formalism
want formal app of law, interested in direct app of law. "constructionalist"
legal realism
take into account social evolution and social change. look at public policy and how it affects society
law is not objective, but used as tool of elite
critical legal studies
marx + foucault, ideas of class and power, law promotes and solitidifes class status in us
feminist legal studies
law is an instrument of patriarchy
critical race studies
believe law is a tool to promote white supremacy
act by severe torment is intentially inflicted upon a person for a variety of reasons. used as a form of coercion. notion of secrecy or publicity.
custodial relationship
when someone is in custody
system of situations that cause a torturer's conscience and inhibitions to be reduced.
Geneva Convention
afer WWII in 1949. deals specifically with how to treat a POW.
no torture of combatant. no justification of torture, period
Unlawful Combatant
not part of any army. Guantanomo Bay insurgents. often as a justification for torture or mistreatment of prisoners.
United Nation Declaration of Human Rights. no one shall be subjected to cruel and unusual punishment.
United Nations Conventions Against Torture (1987)
8th Amendment
denies right to torture.
McCain Amendment
passed in senate 90-9. Desires stricter limitations on torture. postulates: 1. torture does not lead to good intel. 2. mistreatment of prisoners leads to our soldiers torture. 3. exacts a great toll on war of ideas. 4. must be a moral base that we seperate ourselves from the enemy.
customary law
law of customs, isn't dictated, more of societies customs
conventional law
occurs through conventions (Geneva, etc.) no legal enforcement mechanism.
torture by proxy
take prisoners to countries where torture is legal
silver platter doctrine
any evidence you can get from any country you can use
universal jurisdiction
no matter where you are in the world, you can be punished for crimes against humanity (pinochet)
politics of denial
2/3 of all states are violating torture standards. common excuses 1.literal denial, 2. interpretive denial, 3. inplicitive denial.
slippery slope
once you start justifying any kind of torture, you will soon have a domino effect.
lesser evil
better to torture one to save many. utilitarian ideal.
executive power
president has significantly more power during wartime
criminal law
looking for mens rea and actus rea, what to we have to prove for this law?
criminal procedure
protections afforded to criminal especially in 4th, 5th and 6th amendments. no guarantee of justice in constitution. only appeal case if procedure is incorrect. criminal justice is actually just procedure.
4th Amendment
search and seizure/surveilance. reasonable and supported by a warrant.
exclusionary rule
evidence recovered without proper warrant
Terry v. Ohio
officer can stop and frisk you if you are in a high crime area for his safety.
plain view doctrine
once it is in plain view, no reasonable expectation of privacy
automobile privacy
no reasonable expectation of privacy. can search your car without warrant, without cause.
articulable suspicion
less than probable cause. pretty much reasonable suspicion, i.e. papers, odor, whatever.
no reasonable expectation of privacy at borders
can check locker at any point
exigent circumstances
emergency for law enforcement in that evidence will be destroyed.
give up all rights with 4th amendment. LEO cannot use "no" as suspicion
inventory search
tow your car, they can search it and use evidence against you
urine sample
not legal for obtaining probable cause
sneak and peek
allow for looser regulations per suspected terrorists. gov't can perform searches and seizures without immediate notification.
Keith Case
1972- supreme court ruled "no" that the president cannot order surveillance without judicial mandate (limited domestically).
U.S. v. Troung
1980- U.S. citizen but international connections (spy). yes president can order eavesdropping, primary goal must be investigatory. cannot build a criminal case.
1978 Foreign Intel Surveillance Act. response to Kennedy, Johnson, Nixon administration who were spying, goes to stop against criminal cases v. intel cases.
FISC Courts
faster courts for approval on wiretap.
Patriot Act
2001. now all you need is a significant purpose. allow sharing of info easier.
5th Amendment
self incrimination. due process. double jeopardy.
Miranda v. Arizona
court ruled that people must be informed of their rights. Miranda Rights.
national security law
"counter terrorism law" how much power can the executive brance have during wartime? balance between personal freedom vs. powers. checks and balances paradigm.
plenary powers
executive branch does have plenary powers.
executive order
executive branch has power to make law. unless congress checks law, becomes law.
political question doctrine
up to political process to figure out -> judicial brance steps out -> takes away one check
steel seizure case 1952
U.S. in Korean War. steel mills about to go on strike, but president Truman decides that steel mills are necessary for war effort and he authorizes govt seizure of mills. supreme court decides that truman does not have power for this and that it is over reaching.
3 part scheme from steel seizure case:
1. when presidents powers are passed by congress, he has strongest power. 2. twilight zone- president acts without congressional law, unsure of action. 3. president acts againts congress, no power
president powers v. civil liberties?
rights to free speech, etc are generally tried to be halted. 4th amendment searches and seizure requirements as well as 5th and 6th amendments implicated.
alien and sedition act
gives Adams ablity to detain and deport anyone without due process
espionage and sedition act
WWI, govt targets those who speak out against war. deport 20,000 suspected anarchists to russia
massive intel program against political dissent groups to monitor civil rights groups
Habeus Corpus
produce the body of the case against you in front of judge and accusers
Ex Parte Milligan, 1866
during civil war, protesters are detained by lincoln and tried by military tribunal (no 6th amendment). sentenced to death by military court for speaking out. supreme court- president does not have such power to suspend habeas corpus. cannot try civilians in military tribunal.
Korematsu v. U.S.
1944. Roosevelt decided that all Japanese be rounded up and detained in internment camps after Pearl Harbor.
Executive Order 9066
passed to allow detaining of Jap-Amer. no due process. Supreme Court- hinges on 14th Amendment equal protection. defined by ethnicity. court troubled by racism, but trusts president.
offered to JapAmer. $20,000 and formal apology to japanese americans
unlawful use or threatened use of force by a person or group in an attempt to coerce governments for ideological purposes.
OK City
1996. Tim McVeigh. Christian radical wanted to get point across. (Turner Diaries). Part of loose militia group who distrusts federal gov't. anniversary of WACO.
Anti-Terrorism bill
passed by Clinton in response to OK City bombing.
Cole (author)
not about changing criminal procedure or law. we need to change foreign policy. i.e. US support of Israel, military presence in Saudi Arabia, bombing and sanctions in 1st Gulf War.
civil rights
some of most cherished are in constitution. movement in 50s and 60s. mainly right to be free from discrimination.
civil rights act 1964
can't discriminate anyone for anything
positive rights
state obliged to protect and provide (vote, health care, rep. government)
negative rights
denote what government cannot do to you. (free speech, etc)
human rights
universal rights everyone should enjoy. just because we are human beings
non- derogable rights
cannot rescind no matter what. 1. life 2. slavery, 3. roture, 4. prosecuted according to current laws
cultural relativism
all cultures are equal and good, just need to be understood
state as father figure as a guardian of rights
civil libertarian
very concerned with individual rights
believes in community rights > individual rights
one drop rule
if you have any black blood in you, you are considered black during slave times in US
the systematic execution of a group of people
convention on prevention and punishment of the crime of genocide. after WWII
Herero Massacre
German states killing N. Africans "Hereros" because of colonialism. some of the same people who designed the Herero Massacre were the same who orchestrated the Holocaust
social darwinism
competition between human groups. the fit will continue to succeed.
Frantz Fanon
anti colonial thinker. one of most influential.
settler v. native
native's violence is justified and liberating.
White Man's Burden
white's are so superior, they hold a burden to spread colonialism.
Hamitic Myth
every element in Africa from Europe. Ham brought with him when banished to Africa for looking at naked noah.
cause lawyer
lawyer who works for a cause, often 'pro bono'. find a test case that will further their cause.
Clarence Darrow
tackles the death penalty via underdogs. tired 100 cases, won 99. lost Scopes Monkey Trial
Scopes Trial
1925. teacher teaches evolution. darrow represents teacher and argues under sepearation of church and state.
Johnny Cochran
took action against LAPD. especially "chokehold" techniques.
client lawyer
taking cases by who walks in the door regardless of cause
Furman v. Georgia
1972. death penalty is unconstitutional under 8th amendment because it is not applied universally.
Gregg v. Georgia
1976. there had become a unified standard of death penalty. four parts. 1. bifucated trial (guilt and sentence). 2. aggravating factors allowed. 3. mitigating factors allowed (drunkenness). 4. automatic appeal to state supreme court.
ABA (american bar association)moratorium on death penalty. why?
1. selective prosecution. 2. failure of state support of legal advice (every trial needs two lawyers). 3. no protection of review after conviction.