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LGLS 360
Law and Society
36
Law
Undergraduate 3
11/17/2013

Additional Law Flashcards

 


 

Cards

Term
The rationalistic model of lawmaking
Definition
Laws are designed as rational responces to situations in society that are harmful to people in society. (Crime is harmful to society. Society responds by trying to deter criminals by setting laws.
Term
Formally irrational law
Definition
God makes the laws
Term
The functionalist model of lawmaking
Definition

Close resemblence to hoebel. Toward centralization of power. Tries to eliminate conflict.

 

Term
Substantively irrational law
Definition
"Khadi justice" (Khadi-muslim judge who sits in market and decides cases between merchants) look at each case and decide based on gut. Looks at religious, ethical, and political reasoning.
Term
The conflict perspective on lawmaking
Definition
Regards social and economic inequality as determining the law. The wealthy pass laws that will serve their interest. Their interests generally do not coincide with the interests of society.
Term
Formally rational law
Definition
Has a legal code (internally harmonious body of principles) which are general and clear and predictably apply to all general cases.
Term
Moral entrepreneur theory of lawmaking
Definition

Argued that if you want to understand how law developed, you need to understand that:

  • Law is a product of social entrepreneurship. 
  • Don't have to be social elite to be moral entrepreneur.
  • Marijuana tax act of 1937
  • Narcotics bureau emerges as a social entrepreneur --Passes the narcotics act    --head of the bureau Henry Anslinger hired by Mellin. Mellin was worried the sale of hemp would compete with dupont family chemical. Anslinger worked on behalf of Mellin to defend the interests of the Dupont family business. Symbolic crusade by Joseph Gusfield
  • MASS is an example of moral entrepreneurship
Term
Marijuana Tax act of 1937
Definition

Placed tax on the Sale of Marijuana

  • Related to Moral entrepreneur theory of lawmaking
Term
Khadi Justice
Definition
Looks at each case and decides based on gut.
Term
Harry Anslinger
Definition
The head of the bureau of prohibition and narcotics, he was hired by Andrew Mellon to defend the Dupont family business.
Term
Hierarchy in Law schools (Kennedy) (curriculum)
Definition

There is a hierarchy in curriculum and among students.

1st year- legal reasoning (principles from assumed realities, ie capitalism, laissez faire)

2nd year- Reform programs (new deal, more regulatory regulations)

Term
Hierarchy in law schools (Kennedy) (students)
Definition
Wealthy students go to wealthy schools, those most successful at these schools are at the top of the hierarchy. Students defer to those above them in the hierarchy and treat those below them poorly. Those who serve big corporations are praised, Kennedy thought you should help the poor.
Term
Joseph Gusfield
Definition
Wrote "symbolic crusade" about prohibition act.
Term
Symbolic crusade
Definition

Americans put faith in law

ie. to stop drinking problems

Term
Andrew Mellon
Definition
Hired Anslinger. Worried that the sale of Hemp would compete with Dupont family chemical. Worked with Anslinger to help defend Dupont.
Term
Fight theory
Definition
American adversarial system of law is an example. Lawyers do not care about the truth in the case, only that they earn the "victory".
Term
Truth theory of Lawmaking
Definition
Lawyers attempt to uncover the truth and present it in a court of law.
Term
Legistlative Lawmaking
Definition
Made by legistlature. Judges interpret the law.
Term
Judicial lawmaking
Definition
Court must interpret law and sets precisdents
Term
Primitive rebellion thesis
Definition
Some crime is a form of revolt. Workers understand that they are being oppressed and taken advantage of by the bourgeois. When working class commit crimes, it is a form of protest, not a way of making a living.
Term
3 types of judicial lawmaking
Definition

1. Precedent (stare decisis)

2. Interpretation of statutes (pre existing laws)

3. Interpreting the constitution

Term
Lumpen Proletariat thesis
Definition
In modern capitalism when the market slows it throws workers into poverty. Must find an alternate way to survive, so they resort to crime. It is a term coined by Marx to describe the layer of the working class that is unikely to ever achieve class consciousness. Literally means rag.
Term
Codification
Definition
The creation of laws/legal code.
Term
Historical materialism
Definition
Changes in material conditions are the primary influence on how society and the economy are organized. It looks for the cause of developments and changes in human society and the means by which humans collectively produce the necessities of life. First articulated by Karl Marx.
Term
Stare Decisis/precedent
Definition

Court rulings where judges base decisions on prior, similar cases. 

 

Term
Consensus theory
Definition
Social theory that states that a particular political or economic system is a fair system, and that social change should take place within the social institutions provided by it. Consensus theory sharply contrasts with conflict theory, which states that social change is only achieved through conflict.
Term
Anti-trust statutes
Definition
Collection of federal and state government laws that regulate the organization of corporations. Generally used to promote competition for the benefit of customers.
Term
Sherman Antitrust act
Definition
A landmark statute passed by congress in 1890. Prohibits anticompetitive business practices and requires that the federal government investigate and pursue trusts, companies, and organizations suspected of being in violation.
Term
Clayton Antitrust act
Definition
Was added to give further substance to the US antitrust laws. It sought to to end anticompetitive practices in their incipiency. It also specified prohibited conduct and created the three level enforcement scheme and expemptions and remedial measures.
Term
Federal Trade commision act
Definition
Established the FTC, a bipartisan body of five members appointed by the president for 7 year terms. authorized to issue cease and desist orders to large corporations.
Term
August compte
Definition
Founder of sociology. Explored the impact of massive change on society.
Term
Influences on legislative process
Definition

Interest groups- groups pushing forward laws, offer a voting constituency to the law maker, or threaten politicians if they don't pass a law.

Public opinions- 1. Direct influences. 2. Special constituency 3. Indirect influences.

 

Term
Collective conscience
Definition
Set of shared beliefs, ideas, and moral attitudes which operate as a unifying force within society. (Durkheim)
Term

3 Types of public influence on legistlation

 

Definition

1. Direct influences-small groups of people or individual members of the public that can weigh in and offer a reward or some sort of retaliation.

2. Special constituency influences-more organized type of groups (political parties and interest groups)

3. Indirect influences- legistlator and the members of the public have a common interest.

Term
The black death
Definition

The black death, resulting from the

Yersinia pestis bacterium was responsible for the death of 75- 200 million people. It peaked in Europe between 1348-50. 

This was also the time when vagrancy laws began to arrise. A large portion of the work force was wiped out.

Term
Vagrancy statutes 1349-1743
Definition

The number of displaced people charged with crimes continued to increase. This was because the numbers of the rabble but also the likelihood of being charged with a crime continued to increase over the next few centuries, to stop their incursions on private property, and when shortages of labor existed, to assign them to low paid productive work. The vagrancy laws passed between 1349 and 1743 were intended for this purpose.

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