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LGST 101 Lecture 4

No particular written law applied defendants argument

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No particular written law applied Defendants’ argument always was, “I was doing as I was ordered to do” Natural law says you shouldn’t follow such a law if it was inherently wrong Legal positivism o Steps away from natural law o Law as it is is what we’re worried about – not law as it should be (as natural law is) o Says law is created in command structure People who have power make laws People can get the power in many ways – it doesn’t make any difference how we reach the command structure o The point is, that command structure writes the laws for the rest, and the rest must follow Legal realism o Says legal positivism is wrong o It’s not the legislature who makes the laws – it’s the courts o If it’s the role of the courts to establish meaning of law, then it is the court (who applies the law in specific situations) who in reality is saying what the law is – not the legislature This is what happened in the Navigable Waterway Act o Says we have to look at lawyers and judges They are the ones who create the law that we follow CLS o Set up structure saying that, under critical legal studies, there is no structure We have decisions that disagree and are in opposition It depends on the judge, for example We look at individuals, so we can’t have structure since individuals are different o If we had two judges, one a wealthy white male, a second a poor black female If you gave them the exact same problem, the results of the problem would come out differently This is because of their backgrounds If that is the case, there really isn’t much structure to the law o Law is an amorphous structure o See contradiction in maybe regional law and national law Law in economics o Completely different o When we go to trial, we should not be concerned just the plaintiff and defendant We should be concerned with society o Resources in society are scarce We need to make sure that those resources aren’t frittered away
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o We need to make a decision of a case to maximize the benefit of society o Example: Kentucky People were strip mining, came across a subsistence farm Offered to pay for the coal underneath property Then offered to fill in hole afterward Once they took out coal, they paid farmer, then refused to fill in the hole Farmer went to court, but court said that it was better for society if hole wasn’t filled, based on economic analysis He was compensated for the money caused by damages from the hole (which was much cheaper than filling the hole), but his way of living was gone o Very rare o Don’t worry about the individual – look at what’s better for society Note that natural progression in all these forms Be aware of these, but not terribly concerned with them Some concepts Substance versus procedure o Substance – why you went to court, why we’re here o Procedure – process by which court functions (by which actual trial is heard), and how things are done Civil and criminal procedure Written by each state individually Federal government also has its own rules Determine how cases are heard – what information can be heard, can objection be overruled, etc.
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