lawso 112

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dialectic: 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
codification: 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
federalism: 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
GIP: 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 public execution becomes outdated.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.
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.
eugenics: 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.
subjection: you become a subject of a nation rather than an individual
panopticon: 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
plato: 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
appetite: cravings for physical needs (artisans)- making food, etc
spirit: minds capacity for emotions (soldiers)- have to have a strong heart
reason: 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
hegemony: 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"
colonialism: 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
thuggee: bloodthirsty indian cult, used by british to justify invation
manifest destiny: land given to us by god to take over becasue we are superior
aparthied: system of racial segregation, process of hegemony witha white domination. africans seperated by three races (white black and colored)
pedagogy: aproach to teaching, new idea of political application to teaching.
historiography: 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
instrumentalism: 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
torture: 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
disinhibition: 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.
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.
UNDHR: United Nation Declaration of Human Rights. no one shall be subjected to cruel and unusual punishment.
UNCAT: 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.
borders: no reasonable expectation of privacy at borders
school: can check locker at any point
exigent circumstances: emergency for law enforcement in that evidence will be destroyed.
consent: 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.
FISA: 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
COINTELPRO: 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.
reparations: offered to JapAmer. $20,000 and formal apology to japanese americans
terrorism: 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
paternalism: state as father figure as a guardian of rights
civil libertarian: very concerned with individual rights
communitarian: 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
genocide: the systematic execution of a group of people
CPPCG: 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.

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