Legal Studies 250 Notes

Legal Studies 250 Notes - Legal Studies 250 19:20...

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Unformatted text preview: Legal Studies 250 19:20 [email protected] Thompson 208 Recap Traditional vs. LS approach to study law • Traditional: law and society separated (i.e. law as dependent variable for social forces) by rule of law and professional practices • LS: law is everywhere, law and society not separate • LS: law as both dependent and independent variable (shaped by, and shaper of social reality) “Why law?” intro • law in this room? Where? How? • Traditionally, law is produced by legislatures, judges, administrators and executives, and constitutional conventions • Traditional view: “find” law in law library, or otherwise access texts like case opinions, legislation, administrative rules • But this all presumes a certain level of social and legal order • So, while we may be critical of particular social realities that are backed up by law, we need to be mindful that w/out law, or at least w/ ineffective, we may not like the social reality we inhabit • Rule of law: equality before law and access to courts; independence of law/courts (from other social or political forces), and procedural justice trumps substantive State of Nature and “Diary of an Interesting Year” • Context • Was there law? • Is there a “law” here that is natural? • What is the “law” in this particular “state of nature”? Speluncean Explorers • Are any of the justices articulating legally “wrong” positions? No. all perfectly valid legal reasons • Are they all “right”? no body is wrong. • Legal reasoning is simply the combination of certain variables (e.g. social context, accepted “facts” from that context, precedent, and personal attitudes and values about each of those) to produce an outcome in a case • Facts o 5 dudes trapped in a cave o landslide traps them o 20 days • arguments: o Chief Justice Truepenny Opinion uphold convictions strict adherence to rule of law seeks executive actions to “make it right” strict adherence to procedural justice and judicial independence – classical legal thought via formalism and positivism o Justice Foster Overturn convictions Strict rule of law will cause injustice Two grounds for overturning Positive or state law doesn’t reach cave (law of nature does however) Even if positive law reaches the cave, defendants did not violate spirit of law Positive law doesn’t reach the cave and the defendants’ actions did not contravene “spirit” of law – legal realism o Justice Tatting Recuses himself from the case due to conflict of his emotions and judicial intellect However, he seems to lean in the direction by his critique of Justice...
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Legal Studies 250 Notes - Legal Studies 250 19:20...

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