Kalinowski L & S Notes PDF

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Detailed lecture notes from Kalinowski's Law and Society course...

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Intro       

Law is based on the past People have a tendency to stay engrained in societal norms Lawyers are usually looking at one case, not usually focused on impact based upon society Shift from a rules based system to a value based system o Finding the right judge with your values Courts shaping society instead of legislature Cost-benefit in the judicial system Judicial decisions are made in private o Ex: Obamacare o How did this decision get made? o Was going to lose 5-4, chief justice begins writing it and then changes his vote and may have tried to get others to change their votes as well (may not have) o Do they put pressure on each other? Through society or other judges?

Sherlock Holmes Reading   

People scam other people frequently Freedom of speech/the press issue Sexism in the story o Only targeted towards women's past mistakes Lose - Lose situation o How do you solve it? As long as they can take it peacefully, if you fault on a loan they can take your vehicle Battered wife/woman/person syndrome o PTSD  As a defense?  Do they actually have it?  Evidence?  The question isn't if you can actually prove it or not Was this a crime of necessity?

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Next reading: think about how we should have handled Katrina in 2005?

The Case of the Speluncean Explorers  

Comparison to Hurricane Katrina What happens when society really can't provide an answer? o Society? o Consequences? o Not every situation is considered when a law is written Chief Justice o Truepenny o o

Statute is unambiguous and must be applied by judiciary notwithstanding personal views Clemency is a matter for the executive, not the judiciary Court should joint petition to

Affirms convictions but recommends clemency

Chief Executive for clemency Justice Foster

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Justice Tatting

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Justice Keen o

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Justice Handy

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Defendants were in a "state Sets aside of nature" so Newgarth's normal laws did not apply convictions to them; the laws of nature would allow them to agree to sacrifice one's life to save the other four If the laws of Newgarth do apply, then a purposive approach must be taken to the statute. Judges can find an exception to the law by implication, as the Courts had earlier done with self-defense. Principal purpose of the criminal law – deterrence – would not be served by convicting the defendants. Criticizes Foster J's approach Withdraws from case and makes The natural law under the no decision posited "state of nature" prioritizes freedom of contract above the right to life Purposive approach to statutory interpretation is difficult when there are multiple purposes (here, retribution and rehabilitation) Cannot decide case due to competing legal rationales and emotions Affirms Criticizes Chief Justice's proposed appeal to Executive for clemency given convictions need to respect separation of powers; should only make appeal in capacity as private citizens Moral considerations are irrelevant in applying the statute Court should take account of Sets aside public opinion and "common sense" convictions Aware that 90% of the public want the men to face a lesser punishment or be released Has heard rumors that the Chief Executive will not commute the sentence despite strong public opinion

Adams Reading 

Positivism and the Separation of Law and Morals o The law as it is v. the law as it ought to be  As it morally ought to be?  How do you make the debatable case rational? o Positivist  Idea that when we look at the law we are blind to its values and its consequences  Ex: Nazi Germany  The law is the law is the law is the law

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You should follow the law until it changes Ex: Keen in Speluncean Explorers o Crime against humanity  The Morality that makes Law Possible o 8 Ways Law should be made  Law should be sufficiently general  Publically prominent  Forward looking  At least minimally clear and intelligible  Free of contradictions  Constant and does not change  Possible to obey  Administered in a way that does not diverge from obvious or apparent meaning o Goals  Deterrence  Preserve life  What is law? o Law is nothing else other than:  An ordinance of reason  For the common good  Promulgated by one who has the care of the community o Natural law is that which you know naturally  How?  By nature?  By God? o Good is that which all things seek o Unjust laws  Those that are contrary to human good  Those that oppose the divine good o Trying to preserve society's soul o Who gets to define what behavior is normative?  Majority rule  How do you protect minority rights?  You are born knowing the normative behavior  Natural Law Theory o Radbruch's view is that enactments (laws), the injustice of which are at an intolerable level, have no claim at all to legal status (pg. 90)  How do we determine this? What do we do with things that lie outside the norm of what the law normally deals with? How do we deal with these things?

Summers v. Tice 

Defendant acted negligently and his actions caused the harm The standard Why are we going to bury this standard because there are 2 defendants? Burden of proof is on the plaintif o Make your case or don't o Has to prove who proximately caused the damage

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Diferent standards Holding

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The 2 defendants are in a better situation to say who caused the damage, therefore we'll say they both caused the damage and they can sue each other We're not going to try to make the plaintif prove because he's in the weakest position Is it important that the defendants were there together? Probably If they were separate, it would be a diferent outcome Why is the civil case diferent from the criminal case? Money v. jail time What if he had died? Estate Hold both responsible for large amounts of money? Alternative?  Prove it, who pulled the trigger? Stray from statute? Just suck it up and pay the guy?

McClesky v. Kemp   o o  o  o

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Might say that bad facts make bad law Wants to argue that race played a role in his death sentence Bad case to try this approach No evidence Dependent variable Outcome of the case Independent variable Race of several parties  Defendant  Police officer  Jury Do any of these variables indicate a consistent outcome? Such that you can draw a conclusion? Thinking more about Baldus study than the case itself Page 593 Identify variables Page 595 When people are playing with percentages, be careful Percentages are used because the raw numbers are tiny Trying to make a point

o o o Research paper  Research Paper o Is the efect of a death penalty case diferent from another case? o How would you explore the idea that participating in a death penalty case is diferent for an attorney than any other kind of case?  Diferent than drug cases, family law, contracts, etc.  2 others  4 secondary groups

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Evaluate whether the burden of the death penalty on the system is worth it Not money Not jail time (society) Asking the people in the system Is the burden that we're putting on the people in the system worth it? Go through the various groups of people this might afect o What question can you ask?  How will I get meaningful answers  How the questions I ask allow me to contrast my group with comparison group  Likert scale 7 groups o 3 essential groups  Indispensable and always there  Attorneys  What pieces of information do you need to know to decide whether or not we want to put lawyers through death penalty cases?  What's it like to deal with people that have a diferent perception of reality from you? People that are essentially crazy?  Juries  Have you ever worried that someone you convicted was innocent?  Judges o Examples of secondary  Defendants family  Victims family  Attorneys family  Court personnel  Clerk  Court reporter  Bailif  Guards on death row  Feelings toward prisoners     

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If you omit a certain group, explain why Look at rival explanations Looking for observable outcomes Office hours

What's the role of religion in your job and how you do it? Ex. Strong catholic faith in family law  Divorce cases  What is the role? o If you feel that there is no after life, does that change your view on the death penalty?

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Ask judge: have you allowed the outcome to override the technical process? Have you ever set aside a minor technical detail/rule Have you ever been more worried about the outcome? Ask lawyer: Have you ever been held in contempt because the judge wasn't following the law? o Are you more willing to be held in contempt if it’s a certain type of case? Ask lawyer: Innocence o Ability to identify with client? o Felt more strongly about a case based on feelings toward your client? o Do you feel additional stress when you identify with your client? o How do you keep the facts straight when working on a lot of cases? o Health consequences because of your job? o Anxiety attacks because of a particular case? o The justice system is fair?  Agree or disagree o The justice system provides justice?  Agree or disagree o I've broken the rules to win a case  Agree or disagree o I've altered evidence  Agree or disagree o Committed perjury? o Does the system allow judges to dodge responsibility?  Jurors? o For a short moment in a tiny space, judges are god?  Ask lawyers, family, judge? Jurors? o Have you ever taken legal action, that was legally proper, that you felt was immoral? o If you were rational you would have stopped doing this work long ago  Agree or disagree o o

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Ask guards: Quaker 207 Prisoners are executed at a diferent place than where they stay so the guards that took care of them don't have to execute them Have you ever become attached to/friendly towards a prisoner? Did you ever have difficulty carrying out your job? Have you ever rooted for the inmate?? Have you ever missed an inmate/felt bad once they were gone? Have you felt guilty for carrying out a judges orders? Police officers May not want to use, questions about death

Cause lawyers Do you have a moral or political commitment to what you're doing? Do you ever feel like you're representing and idea? Societal change?  Rather than a person o What is your higher calling? o o

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Are you representing that? Agree or disagree my profession allows me to provide a link between my beliefs and practice/profession? o Are you pursuing a vision of a more just society while continuing to make a living?  Is your job helping to better the world? Agree or disagree?  Is what you're doing meaningful? How?  A lawyers should pursue a vision….agree or disagree?  When you're losing does it feel harder to make change? Do you ever want to give up or change what you're fighting for/against? o Do you see the practice of law as a morally fulfilling career? o Do you do better work if you like your client? o The client doesn't matter, I'm asserting or shaping the law. Agree or disagree? o Do you want to be shaping the law in ways the matter? These readings should bring up attitude questions Cause lawyering may be a rival explanation if your data doesn't show what you thought it would o Diferences in data o If you take out cause lawyers does it change data? o Control? o

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What Punishment Is Harm  Deprive someone of something good  Something that is bad for the person  Doesn't define what is good and bad, not neutral  Being worse of than you were  Removing freedom  Harm needs to be intentional  Person and society need to know that the harm that is being inflicted is being done on purpose because that person did a prohibited act Retributive  Balancing out the wrong that was committed Reprobative  Official disapproval of the other person's act Authorized  Needs to be legal  The correct official doing it  A legally authorized official expresses disapproval and intentionally makes a convicted person worse of than they would be otherwise believing the convict acted in a way that was prohibited Directed toward the death penalty being too much of a burden on society Psychological efect Family burden Work-life balance Stress Narrow down questions so that each one is significant

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Investigate burdens Broad one with some sub questions The Argument for Retributivism o Punishment if there is a net social gain and if the ofender deserves it o Net social gain important for project  Economics  Crime trends  Do the punishments deter?  Successful?  Taking away someone from their family?  How does it afect the family?  Both good and bad  What is the cost of wrong punishments? Ask judge about punishments o Which bother you? Build a definition into paper o

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Anecdotes are not the foundation for conclusions List for paper in article Add in lawyer's family Governor/parole board - final check Probably don't include protestors  Not very persuasive Generic sense of who you'll send questions to Jurors who sentenced someone that’s already been executed Level of grief, shock, acceptance Anticipating it v. sudden Long and drawn out  Similar to a terminal illness If you ask about PTSD Identify symptoms and source Is the emotional toll too high? Could ask about forgiveness Do you want revenge? Do you think the punishment for them is too lenient, severe, just right?

12 Angry Men  As a citizens, what obligations do you have to society?  12 Angry Men o Must have 12-0 vote either way o Only vote not guilty if reasonable doubt o Must give him death penalty if guilty o First vote 11-1 o In favor of guilty  Bad alibi about seeing movie

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Witness across the street saw him He had prior criminal history Reached his breaking point with the abuse The purchase of the knife Train evidence Couldn’t look through windows Couldn't have heard the screams over the noise of the train In favor of not guilty Unreliable witness  Looking through the windows of passing train He had been beaten his whole life Just because he had a bad upbringing doesn't mean he is bad Found a knife the same as the murder weapon Revote to see if anyone has changed, now 10-2 After more discussion about witness, vote is 8-4 They realize the old man's testimony couldn't possible be accurate Diagram of apartment Vote goes to 6-6 Open ballot vote Vote goes 3-9 After argument about how to hold a switchblade

Issues with the film  Lack of racial diversity in film o Colored people could be excluded by law o Lack of women as well, not allowed until after colored people will o Automatically excluded by society, couldn't handle emotions of death penalty case  As soon as second knife was presented, should have been a mistrial o Also can't do research outside of case, also would have been a mistrial o The speculation and reenacting would cause a mistrial because that information was not originally in evidence o Can't bring in newspapers to the jury room  Some states had the death penalty as mandatory o Today that isn't allowed o Death cannot be the automatic outcome if you're convicted of the crime

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What is the role of the jury in our society? Peers deciding guilt or innocence People's last check on tyrannical government Importance of jury? Only citizens can be a part of one Need multiple opinions from diferent random people to remove some bias This is the way we resolve disputes, needed to resolve disputes peacefully

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How far can we expect you to perform your duties? (missing work or sick family member) Serving on a jury was a serious burden (agree or disagree) Or could do as a list, check all that apply  Financial difficulty, family issues, etc. Can't speculate on why lawyer didn't mention pieces of evidence Not remembering the movies he saw, they didn't bring a psychologist in so they can't speculate on remembering a movie Jurors aren't given a definition of reasonable doubt What is it that is your duty? To uphold the law?  Is this your only duty? How much can we ask of a jury member?  Goes back to hardships the person can face as a result of being a jury member (jury nullification)  Duty to society aspect  Used to protect race

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Duties to society Do you have to register to vote? Do you have to register for the draft?  Ex: women v. men Do you have a duty to learn/perform skills for public service?  Give blood?  Learn cpr? How much can we expect of you? Does your duty change based on the type of society? Where are the limits of what the government can expect from you?  Give up your life?

Epstein Chapter 1  Empirical Research o Based on observations of the world o Quantitative or qualitative o Comes into play in our analysis in term paper o Start with a hunch, curiosity  Qualifying a death penalty jury o Chopping of two ends  People that would never sentence someone to death  People that say someone should be put to death for a capital crime with no questions asked o Studies done where they take a case and run it in front of mock jury pools  Found that jury that is death penalty qualified is more prone to convict

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People are more likely to convict when the person does not actually exist and the situation is hypothetical  Fundamental problem is that we cannot reset o Cannot change a jury member or witness and see how things will be diferent  While designing our project o Think about presenting data o Analyzing data o We won't actually do these things but think about those when writing the paper o Explain how what I'm doing will be processed and tell people things about what I want to find out  Figure out how to collect what data in a way or form that is useful o What my research project has to do o How, what, and form o Concrete terms that show that your hypothesis is correct o How many elements do I study? o How many sets of data do I look at? o Get information in a usable form o Correlation v. causation  Can try to explain correlation without allowing for causation  Think about counter causes  On appeal not looking at facts, looking at whether or not the law was applied properly Epstein Chapter 2  Have to have some level of knowledge on what you're going to research o Asking research questions  Can often be more than one  What type?    

Ideally would like to have the positive statement, but not absolutely necessary Problem with definitive statement is that you may feel like you have to prove something Look at alternative explanation o Can you test them? How? Theory o Broad background o Something to draw on  Hard to reason with nothing o Must have observable implications o Part of the design process

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Independent variable Input Action you controlled Questions you're going to ask to get the data

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Dependent variable Output What happened from that action Data or observations you want to collect

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What are the rival explanations? Other explanations for what you might be seeing Omitted variable bias o Conclusion is wrong because you failed to look at alternative variables Not on a test until the final o Both of the Epstein readings o Also review for the project o

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George Carlin video We've changed too many words over time as so not to ofend people ...