C- january 26 - January 26, 2011 Hw- finish brown v board....

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January 26, 2011 Hw- finish brown v board. Bake, froniero, san antonio A-State of the Union Adress 1- Article II section 3 says that president has to stand before congress and give a speech 2- There were two rebuttals last night, from the Republicans and the Tea Party B-Questions/Topics 1- Case study of Brown v Board of edu 2- What is legal reasoning? a. Not just the mechanical application of rules to a set of facts (Leevee) b. Legal reasoning is a system of decision making by example, by analogy c. There are three steps in legal reasoning: c.i. To find similarities between present case and previous cases c.ii. Identify the rule of law that is in the first analogous case c.iii. Apply that rule to the present facts d. This means that classifications and rules/laws are going to be changed d.i. This is because no set of facts are ever identical d.ii. Every application of the rules to a new set of facts produces a new classification e. Law changes and law is fluid e.i. A system of decision making by analogy e.ii. Judges consider what they did in the past e.iii. Legal rules are not static or unchanging, and they are not empty of meaning 3- When is it fair to treat different cases as though they were the same? a. When is it fair to treat similar cases differently? 4- If we accept Leevee’s analysis we can see how politics becomes an element of deciding when cases are alike, and when they are different a. Same sex marriage a.i. Opposite sex couples were different from same sex, so they are allowed to be treated differently a.ii. Gradual gravitation towards treating gay marriage the same a.iii. Advocates say that gays should be treated with the same rules a.iv. Now people look back to analogy of Loving v Virginia a.iv.1. Supreme court agreed a.iv.2. We are talking about a similar thing a.iv.3. In deciding that case, the Supreme Court relied on the equal protection law of the 14 th amendment a.iv.3.a. Expanded the scope of the 14 th amendment 5- The law is dynamic a. Not the same thing as saying there are no rules b. We tend to think that it is either/or – intrinsic meaning/no meaning c. There are rules, and the court reads them, thinks about them, and applies them c.i. In doing so, they make decisions that change the nature of the law d. As rules are applied to new facts, they change 6- The formalism/realism distinction is illuminated by Leevee’s view a. Formalists and realists are both wrong because they are at the extreme
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7- Brown v Board of Edu a. There were a lot of things that lead up to this that the supreme court was able to rely on 8- The concept of a constitution a. What happens if somebody says that old cases don’t matter, and that the constitution really matters and says things totally different from what judges have said before b.
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This note was uploaded on 02/06/2012 for the course POLISCI 106 taught by Professor Levine during the Fall '07 term at Rutgers.

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C- january 26 - January 26, 2011 Hw- finish brown v board....

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