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124 Cards in this Set
- Front
- Back
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explain Law in Action |
"the actions of enforcement agents and institutional actors also make law and construct legal meaning" Walk of law different levels of enforcement |
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what creates the gap between law on the books and law in action |
unintentional or intentional ambiguity Pluralism Discretion |
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Why is Ambiguity a necessary property of law? |
symbolic - for political message some need room for interprettion |
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Why is discretion a necessary property of law? |
impossible to specify everything or to enforce everything |
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What is the role of legal pluralism? |
creates opportunities for agents to draw from different sources of law |
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Why do sociologists study the gap between law on the books and law in action? |
It affects your life/ is what you base your decisions on patterns and logics of the gaps tell us about society such as the political moment and what ideas hold us together |
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What causes legal actors to enforce, interpret, and act on the law differently? |
Agendas Pressures Structural Dilemnas` |
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Chicago gang ordinance |
ambiguity in status of "criminal street gang member" ambiguity of "loitering" racially skewed |
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Sudnow's Publc Defender Office |
organizational imperatives PD and DA work as a team, creating a sort of "court community", and create recipes for reducing charges based on extra-legal factors in order to facilitate efficient disposition of routine criminal cases |
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Title IX |
implementation of administrative law: from 14th amendment to CRA to Title IX demonstrate compliance by: proportionality to student enrollment, expansion of opportunity, accommodation of interest |
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What were some unintended consequences of Title IX? |
cut men's programs rather than add women's |
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Implementation problems of Title IX |
signing up women without them knowing double counting XC and track adding women without letting them compete counting men's practice teams |
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Obama's Immigration Poliy |
Policy of non-enforcement is political Said DOJ officials could use discretion on when to enforce and with whom |
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Three ways that law is Everyday and Everywhere |
Popular culture mundane activities Language and meaning |
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Pop Culture:How do legal spectacles shape our ideas about law? |
law as entertainment (shows, movies, Law and Order, unimportant media cases" role of understanding tort law - US too litigious? McDonalds Coffee case |
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Mundade Activities: how is law internalized? |
why do we stop for red lights on deserted streets but illegally download music? internalized by a sense of moral obligation and a knowledge of social norms also affected by social sanctions, official sanctions, rewards, punishments (Tittle and Rowe cheating) |
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Language and meaning: How does law shape the language we use and the meanings associated with particular categories? |
law creates conceptual categories and determines their contents and boundaries (criminal, illegal alien, spouse) Ian Haney Lopez: white by law; courts perpetuated whiteness by deciding who is white and not white (Asians: no then yes, is a high indian caste white?) |
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What is hegemony? |
the power to shape reality without calling attention to itself |
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How is law hegemonic? |
Creates many of the categories and concepts that are reinforced by legal actors - should California put trans in male or female prisons? |
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How is law seen as oppositional? |
seen as a tool of resistance or the weapon of the weak law is an open arena to those without power (child brides in Yemen and how prisoners file grievances) law harnassed to fight back - civil rights activists |
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Why would law be oppositional rather than hegemonic? |
Usually view people as "the object of the law", but they play an active role in enforcement and opposition. legal rights depend on individuals who think their rights have been violated and aim for social change |
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Legal Formalist Model |
problem --> law --> rights -- (rights consciousness and mobilization)--> precedent ---(enforcement)---> social change |
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What is Legal Consciousness? |
how ordinary citizens think or don't think about the law their understandings of law and legal institutions |
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How do you study legal consciousness? |
look at prevailing norms or the common ways of dealing with problems study how ideas about law influence people's decisions and interpretations of social experiences |
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Why is it important to study what people think about the law? |
Without people realizing they can use the law or that their rights were violated (rights consciousness and mobilization in the model), there would be no case and thus no social change. |
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What are the three orientations of the law (Ewick and Silbey)? |
Before the law, with the law, and against the law people move freely between these |
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before the law |
law is detached from society you haven't had the chance to use it or don't think you can manipulate it not critical of it |
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with the law |
utilize it when it favors you manipulate it to your advantage |
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against the law |
cynical about authority of law distrust it |
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The four different rationales Nielsen found in her study: |
1st Amendment Rationale, Autonomy Rationale, Practicality Rationale, Distrust of authority rationale |
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1st Amendment Rationale |
taking the good with the bad tolerance better than taking away freedoms primarily white men |
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Autonomy Rationale |
people should be able to deal with it themselves primarily women, possibly because they don't want to be seen as victims |
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practicality rationale |
how would it ever be enforced? more women than men |
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Distrust of Authority Rationale |
even if it was illegal, it would not have any effect tickets would be issued in a discriminatory manner more black men, African Americans have felt blatant racism in the law |
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Conclusive Findings of Nielsen |
People generally disfavored legal regulation in this manner confirmed prediction that being a part of a lower economic group increased likelihood for "against the law" rationale |
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How is our legal consciousness affected by media? |
media dramatizes, personalizes, normalizes, and simplifies complex social relations makes extreme cases seem normal and affects opinions of litigiousness |
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McDonald's Coffe Case and the media |
blamed the victim - greedy woman sues over hot coffee Jokes on t.v. news and talk shows only included $2.9 million settlement and hot coffee, not the severity of burns and scientific testimony about the temp of coffee and skin penetration |
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How do formal, state-sponsored sanctions fit into social control? |
Formal sanctions, like official sanctions, rewards, and punishments, deter crime yet also lead to a sense of moral obligation and "internalized laws". |
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What is deterrence? |
Deterrence is when a potential violator does not follow through on his action because he perceives some threat of legal punishment. |
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Draw the deterrence diagram |
amount of compliance on y axis amount of punishment on x axis steep curve up then flattens down |
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What are the three factors that influence deterrence and compliance? |
Characteristics of the threat or promise Characteristics of the person subject to sanction Characteristics of the behavior to be controlled |
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Characteristics of the threat or promise |
severity (of punishment or award) certainty (perceived risk of actually being punished) celerity (speed / time frame) |
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Characteristics of the person subject to sanction |
size of population (large population makes crime hard to detect) culture and perception (could see a certain sanction as more perverse than others) personality and affinity toward risk-taking behavior |
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characteristic of behavior to be controlled |
detection demand for behavior to be controlled (think about parking illegally) |
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Tittle And Rowe's Findings |
cheating behavior among college students moral appeal had no effect threat of spot check / sanction did |
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What kind of effect did Tittle and Rowe find in size of class, grade distribution, and gender? |
larger effect on smaller class (more likely to be caught, find teacher more credible) less effect on students with bad grades (more incentive to cheat) larger effect on females (less risk taking behavior) |
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Explain the reciprocal relationship between race and the law |
race influences legal outcomes but legal outcomes also create our understanding of race and reinforce racial ideologies race influences our experience with the law and shapes legal consciousness economic interests influence how and if racism gets embedded into law |
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Explain how White Black and Asian are socially and legally constructed categories |
race as a biological fact using the "science of the times" Chinese Exclusion Act: Caucasian race not by color of skin but by shape of head (economic interests) US census produces ethnic identities "feeblemindedness" tests on Ellis Island |
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Haney Lopez's study of naturalization cases and why they aremimportant |
Society has invested physical features and lineage with meanings. The social process of ascribing these meanings creates race. Naturalization law shows us how definitions of race changed according to who people wanted to exclude or include (based on economic interests or others) |
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What is institutional racism? |
sanctions within districts that impact people of color differently (often in poor neighborhoods where people don't normally complain) |
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What is colorblind racism? |
excuses for the disparate impact of racism because of individual acts criminals losing voting rights disproportionately disadvantages African Americans |
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How does racial bias (conscious and unconscious) impact discretion in policing (Alexander)? |
by unconscious selection based on ideas of who criminals are and what they look like (loitering / consent searches, war on drugs, reinforced by unequal treatment in media) |
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How does racial bias (conscious and unconscious) impact discretion in prosecution (Alexander)? |
because of history with racial stereotypes (black drug offenders prosecuted in federal system instead of state, death penalty given more when black kills white vs. black kills black) |
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How does racial bias (conscious and unconscious) impact discretion in jury selection (Alexander)? |
new laws allow some jurors to be struck and these laws are applied in a discriminatory manner |
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How does racial bias (conscious and unconscious) impact discretion in sentencing (Alexander)? |
by having mandatory minimum sentences for certain crimes having worse sentences for crack, which is used more by the black community, than powder cocaine |
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Disparate impact vs. Discriminatory intent |
Can have disparate impact without discriminatory intent ex. disenfranchisement |
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What is explicit bias vs. implicit bias? |
Explicit bias is conscious and similar to discriminatory bias. Implicit bias is unconscious: actors thin in certain ways that are biased (what criminals look like) |
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The 14th Amendment |
cannot deny any person "equal protection of the laws" "nor shall any State deprive any person of life, liberty, or property, without due process of law" |
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Civil Rights Act |
activity is unlawful if it has a racially discriminatory impact that cannot be justified by necessity no discrimination based on race, color, or national origin in federally funded programs (Title VI) implementing regulations use a disparate impact testq |
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Can use the law to challenge disparity through |
14th amendment (McClesky v. Kemp and Armstron v. U.S.) CRA (Alexander v. Sandoval)` |
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McClesky v. Kemp |
capital punishment claimed Georgia's sentencing laws were racially applied, filed under equal protection cited Baldus study: defendants charged with killing white people 4.3 times more likely to receive death sentence though statistically credible, courts said "racially disproportionate impact" was not enough, need "racially discriminatory purpose" |
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What impact did McClesky v. Kemp have? |
closed courthouse doors to racial discrimination claims upheld idea of prioritizing individual racism over systematic racism |
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Armstrong v U.S. |
disparate impact in prosecution challenged on basis of racially discriminatory manner of enforcement (crack vs. powder) more blacks charged under federal law. Of 2,000 federal cases, none were white. Not enough, said they needed evidence of a similarly situated white defendant charged under state, but only prosecutors have access to that informaiton |
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What was the significance of Armstrong v. U.S.? |
blocking judicial review of prosecutorial discretion |
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Alexander v. Sandoval |
class action suit against Alabama for English only driver's license exam claimed discrimination under "national origin" of Title VI of 14th Amendment court said Title VI does not have a private right of action,only the DOJ can file |
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What was the significance of Alexander v. Sandoval? |
Federal administrations now can field through claims |
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What laws prohibit employment discrimination? |
Title VII of CRA Title VI of CRA Title IX of CRA Violence Against Women Re-authorization Act of 2013 Equal Pay Act of 1963 Executive Orders |
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Title VII of CRA |
no emplyoment discrimination on basis of sex, race, color, national origin, and religion |
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Title VI of CRA |
in any program that receives federal funds |
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Title IX of CRA |
basis of sex in any education program or activity |
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Violence Against Women Re-Authorization Act of 2013 |
adds on basis of "gender identity" defined as "actual or perceived gender-related characteristics" adds on basis of sexual orientation |
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Equal Pay Act of 1963 |
prohibits discrimination on basis of sex in compensation for equal work |
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Executive orders |
federal contractors must take affirmative action to ensure applicants treated without regard to race, color, religion, sex, or national origin |
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Explain the Equal Employment Opportunities Commission process for claiming employment disrimination |
EEOC rule: if women are promoted at a rate less than 80% of men then the employment practice is questionable Before a title VII claim: 1. File a charge of discrimination within 180 days 2. EEOC conducts an investigation 3. EEOC issues a "right to sue" letter, file a claim in court within 90 days 4. EEOC can pursue a claim itself without someone filing (though this is rare) |
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What are some issues with the EEOC process? |
requires individuals to recognize, understand, and make legal claims enforced through private right of action (hire own lawyers to sue) issue of intent v. impact still not solved |
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Case Law in Employment Discrimination: Griggs v. Duke Power Co. (1971) |
tests required for promotion must not have a discriminatory impact (they insisted blacks only work in labor) employer must show that the practice is related and consistent with business necessity |
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Case Law in Employment Discrimination: Patterson v. American Tobacco (1982) |
seniority systems for promotion that perpetuate inequality are allowed as long as discriminatory intent is not present |
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Case Law in Employment Discrimination: Wards Cove Packing Co. vs. Antonio (1989) |
plaintiff must show the "specific business practice" that causes discriminatory impact |
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Case Law in Employment Discrimination: How do organizational practices create disparate impact in Walmart's promotion outcomes? |
in store-level supervisory and salaried positions, women's representation drops with each step there were subjective and discretionary systems of promotion and pay diversity efforts were inadequate to overcome these barriers |
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Explain the subjective and discretionary systems of promotion and pay |
written guidelines provided only minimum criteria for advancement managers can modify or disregard these guidelines if they wish there was little monitoring or oversight not tied to interest in advancement (their practices in advertising the position) |
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Explain the diversity efforts inadequate to overcome the discriminatory barriers |
monitoring and analysis of disparities in career trajectories systematic education of managers on their contributions to diversity goals of the firm monitoring and analysis of employers' perceptions of discriminatory barriers and career opportunities |
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The limits of the legal formalist model |
you need to put "rights consciousness and mobilization" between rights and precedent must examine how we get to legal claims and how these claims are resolved must put enforcement between precedent and social change |
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What are the three factors of effectiveness? |
Procedural or Substantive Focus Enforcement Contingency |
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Procedural or Substantive focus |
does law focus on discriminatory intent or substantive outcomes i.e. disparate impact? |
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Enforcement |
In gender discrimination, the EOC filters claims so there is no private right to action EOC can take on cases by itself but that depends on resources |
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Contingency |
on other rights or social inequalities, such as cultural norms ex. residential segregation and its effect on Brown v. Board of Education |
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STUDY IN DEPTH THE CHART IN NOTES |
look in notes |
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What is the process of legal mobilization (Felstiner)? |
Naming, Blaming, and Claiming |
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Naming |
going from UN-PIE to PIE first must perceive injury' transformation influenced by attribution error, situational cues, individual differences, exposure to others in similar situation, group identity / culture |
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Blaming |
PIE to grievance when someone decides somebody else is responsible unstable and changing, complicated and incomplete |
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Claiming |
from grievance to dispute when party voices to responsible party and asks for remedy (claim) when responsible party says it is not their fault, it becomes a dispute |
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Dispute pyramid |
from top to bottom: trials filings (courts) disputes claims Perceived Injuries |
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Why is it important to study legal mobilization? |
makes for a strong critique of using a rights based model for law for social change (relies on individuals and lawyers) repeat players have many advantages precedent likely to disfavor one-shotters |
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What advantages so repeat players have? |
specialized expertise and economies of scale long term strategy skill and specialization lack of cost and delay barriers |
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How do courts have limited enforcement ability? |
naturally constrained in producing social change limited to "rights" framework and precedent (procedural focus) lack of judicial independence (elected by politicians, can't stray too far from public opinion) cannot force politicians to abide by court orders |
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An example of this is Brown vs. Board of Education. Explain. |
10 years after, 98% of black children in south still segregated by 72 and Title VI, down to 55% in 2005, 78% of black children in northeast attended a primarily minority school (money and private schools?) |
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How can courts overcome their lack of enforcement power? |
if the design is in line with public opinion (self-enforcing) has political or elite support incentives for compliance / costs for non-compliance |
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What are the drawbacks of rights discourse? |
Rights talk is ambidextrous rights themselves can't do anything (nned enforcement) realization of rights contingent upon politics arguments need to fit legal logic legal cases based on rights are specific |
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What does it mean that rights talk is ambidextrous? |
one person's travesty of justice is another's civil liberty pitches to the left or right of the political spectrum ex. gun laws |
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How are legal cases based on rights specific? |
require narrow agenda and focus on a specific case is the goal to win the case or to set a precedent? arguments need to fit legal logic and the facts of the case |
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How do courts directly create social change? |
directly enforcing its decision creating new legal precedents to challenge the status quo new legal precedent changes incentives for compliance / behavior |
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How do courts indirectly create social change? |
court cases court / legislative wins and losses motivate activists backlash or support in the legislature court decisions can change how we understand social issues (media, politicians, and activists use the language of the courts) |
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How do court cases create social change? |
the new legal precedent creates a new context for people to address their problems becomes a symbolic resource for mobilization slowly challenge what is possible through conceptual categories |
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How does mobilizing activists create social change? |
creating a sense of shared fate create new legal organizations prioritizes certain issues for social movements |
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Courts Creating Change in Gay Rights: Before Bowers vs. Hardwicke |
homosexuals not recognized until 20th century post WWII, govt actively defines as perverse and weak in legal documents Model Panel Code in 1960 recommended decriminalizing sodomy |
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Courts Creating Change in Gay Rights: Bowers vs. Hardwicke (1986) |
Georgia, criminalizing sodomy new framing opportunities: right to privacy, courts as threat to Gay rights --> support from activists and organizations, public opinion increased new strategies and alliances - lobbying state legislatures |
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Courts Creating Change in Gay Rights: Lawrence v. Texas |
overturned Bowers though sodomy enforced, only an excuse to regulate homosexuals intimate consensual sexual activity protected in the 14th amendment |
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What are the potential legal framings of same-sex marriage? |
Does the "fundamental right to marriage" apply to same-sex couples? (right to privacy and due process) Can states deny same-sex couples the choice to marry? (equal protection under law) |
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Courts Creating Change in Gay Rights: Griswald v. Connecticut (1965) |
law prevented people from using any drug to prevent contraception ruled illegal on right to privacy on basis of 9th amendment (the list of certain rights does not disparage others) and 14th amendment (not abridging privileges or immunities without due process) |
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Courts Creating Change in Gay Rights: Loving v. Virginia (1967) |
interracial marriage (anti-miscegenation statute) Brown v. Board applies to intimate relationships right to marriage is a fundamental right overturned law based on due process and equal protection |
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Courts Creating Change in Gay Rights: Turner vs. Safley |
prisons can regulate when prisoners talk to each other but not if they can marry marriage is a fundamental right because of Loving |
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Defense of Marriage Act (1996) |
defined marriage as the legal union of one man and one woman for federal and inter-state recognition purposes Section III: same-sex marriage not recognized for all federal purposes (no insurance benefits, immigration, filing of joint tax returns) No U.S. state has to recognize a same-sex marriage from another state |
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Courts Creating Change in Gay Rights: Goodridge vs. Department of Public Health (2003 Mass) |
found that the state constitution prohibits denying right to marry to same-sex couples legal argument: "fundamental right" (Loving) |
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Courts Creating Change in Gay Rights: Varnum vs. Brien (2009 Iowa) |
14th amendment protects rights of same-sex couples, including marriage legal argument: "equal protection" |
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Courts Creating Change in Gay Rights: United States vs. Windsor |
Edie Windsor challenged DOMA section 3 in NY district court court found DOMA violated rights under equal protection went to 2nd circuit court, upheld and then appealed. Courts split on whether gays and lesbians are a "protected class" |
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Political Support in Windsor |
Obama in defense of same-sex marriage DOJ does not defend DOMA Republican house hired attorneys, however |
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Public support for Windsor |
majority of American support same-sex marriage large regional and demographic variation large companies already provide same-sex couples many benefits |
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What is the legal question in Windsor? |
Does section III of DOMA violate "due process and equal protection"? |
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Supreme Court Findings in Windsor and majority opinion |
DOMA violates those principles regulating marriage left to states, but congress can make determination on marital rights DOMA departs from history and tradition of reliance on state law to define marriage (unusual discrimination) evidence of this was congressional intent federal government has no purpose that overcomes "the effect to disparage and injure" |
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Windsor Dissents |
does not bear on constitutionality of state DOMA legislation political decision not justified by law |
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What were some consequences of Windsor? |
legal mobilization - cited in 40 other cases influences legal/political actors: many state attorney generals decided not to defend bans further political mobilization: some accepted same sex marriage, while others like AZ passed the Religious Freedom Act |
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Courts Creating Change in Gay Rights: Obergfell vs. Hodges (2015) |
legal question: Do state laws denying same-sex couples the right to marry (or full recognition) violate the 14th amendment due process and equal protection clause? Supreme court finding: 14th amendment requires states to license marriages |
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Majority Opinion in Obergfell vs. Hodges |
Due process clause protects fundamental liberty "central to individual dignity and autonomy" - including "right to personal choice regarding marriage" laws excluding same-sex couples from marriage burden a right of "fundamental importance" and "impose stigma and injury" unlikely to impact opposite-sex marriages religious beliefs can still be expressed |
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Dissenting Opinion in Obergfell vs. Hodges |
marriage as traditionally defined is a right, new ruling alters the basis of society that has held for millennia threat to democracy due process should be understood only to protect rights "deeply rooted in this nation's history and tradition: threat to religious liberty |
