Legal Philosophy, Rights, and Justice PDF

Final Study Guide: Ronald Dworkin: Attack on Hart’s Positivism Dworkin was anti-utilitarianism and attacks positivism because it is related to it. - Believes that in deciding cases, the issue – at its core – is related to moral principle, and not legal fact: calls the judge hercules. Dwork...

Final Study Guide: Ronald Dworkin: Attack on Hart’s Positivism Dworkin was anti-utilitarianism and attacks positivism because it is related to it. - Believes that in deciding cases, the issue – at its core – is related to moral principle, and not legal fact: calls the judge hercules. Dworkings summary of Positivism: - Law is a set of rules of community that are used to determine who will be coerced. - Legal rules are exhaustive of the law in most cases - Legal obligation, who one should obey the law, means “falling under a valid legal rule” Rules, Principles, and Policies: Principles: justify their decision on account of a standard of justice or morality. Policies: justify their decision through some political, economic, or social goal. Case #1: Riggs v. Palmer (1889) Should a grandson receive the inheritance of his grandfather, who he, himself, murdered? ○ The son got word that his father was going to change the will and give it to his mom and aunt. Before this could take place, the son killed his father so that he could inherit the money. The grandson was convicted of murder, but argued that he SHOULD get his inheritance. ○ If you look at the rules of law or the rules of the New York Law, it seems like the grandson should get the inheritance. ○ Principle: “No one shall be permitted to gain advantage from his own wrong.” The problem is that this is not part of the law and positivism can not explain how this principle came down to create an outcome that we all want. How can a judge bring in principle over legal? ○ Hard cases arise from glitches in the law but Dworkin is using hard cases to define his theory of law, however, hard cases are the MINORITY of the law. Principles have weight or importance: They may incline a judge one way or another, but they do not necessarily have to be applied If law is only to be determined by factual criteria, the law is gappy. If gaps, appeal to considerations beyond the rules themselves. DISCRETION must be used Weak Discretion #1 + #2: - Decision requires some subjective judgment (e.g. sergeant picking five most experienced men) - Discretion as finality: judge has a finally authority that can't be reversed (not used by positivists) Strong Discretion #1: - Judge is simply not bound by standards set by authority - Judges are legally entitled to decide and there is no correct decision - Not the same as “anything goes” Principles help explain legal change - Principles allow for an evolutionary account of law. Gives ground for establishing certain rules. Rules can be changed if they are contrasted with principles. Principles are set against precedent to justify overturning the law. Hart's Postscript: A Response to Dworkin Hart's Response: Nature of Legal Theory - Hart says that his theory is descriptive and general meaning that is meant to describe how legal institutions work and general in that it can apply to any legal system. (Can explain Nazi Law without being part of it.) - Dworkin wants to say that: No, the aspect of law is evaluative and justificatory conception. - “Description may still be a description even when what is described is an evaluation” - Interpreters can describe insiders POV without sharing it. - Let's say you are not a member of Jesus Christ Latter Day Saints, but if you were a reporter, you still CAN report the church - Dworkin disagrees and believes to report the concept of being a mormon, you must BE a mormon. Hart denies this characterization of the law - The meaning of a term differs from the criteria for its application - The application of the word “law” may be controversial; that does not mean that the meaning of “law” varies between those who disagree - Hart has broader criteria - Rules of recognition can include principles of justice or substantive moral values. - Harts ability to include principles in the Rule of Recognition makes him an INCLUSIVE POSITIVIST Soft Positivism = inclusive legal positivism – can not provide reliable standards of conduct because it cannot provide certainty. - Dworkin's rule requires some certainty in law, but does not give it to us because he gives no rule of recognition to follow. Instead, he simply says the rule of recognition ceases to exist. - Dworkin wants to say that Hart has all or nothing, black and what rules whereas Dworkin says that the law is black and white rules as well as principles. Principles have weight: they might be brought into consideration, or not. - According to Dworkin, Hart ignores legal principles and cannot admit them (if he did, his entire theory would fall apart). - Dworkin: Law =all or nothing rules + principles - Principles sometimes win out over rules - How do they win over rules? Posner; Law and Economics Law and Economics definition: people are rational maximizers of their satisfaction - A change in price will affect the quantity demanded of a good by affecting the attractiveness of substitute goods. - Rationality allows optimizing that allows people to satisfy what they value to the greatest level. So, if you are rational you can maximize your satisfaction. What markets do?: In a perfectly free market (all else being equal), every deal advances the interests of both of its parties; otherwise, the disadvantaged part would opt out. Because both parties gain something of greater value to them through transaction, the total amount of social wealth increases. (maximizes social wealth) → follows a utilitarian point of view. Common law (tort, property, and contract law) can be understood as a tool for promoting wealth ○ Posner says that common law should emulate what markets do. ○ Efficiency is something that people like Posner (who are legal realists) consider. ○ It has evolved to ensure the most efficient allocation of resources Efficiency and the Evolution of the Common Law A law that interferes with free bargaining will draw challenges in the courts, since it constrains people from buying and selling what they want. Thus, it prevents them from advancing their interests. (both buyer and seller) ○ We do not want the law to interfere with the buyer and seller if it is not inherently dangerous. ○ It leads to greater efficiency and greater social welfare. On the other hand, a good law that does not obstruct free bargaining will remain on the books, “season” and become a precedent for law schools. There is a normative argument here: - Law should be understood so that it distributes rights and harms in the same way that a free market distributes goods and services. - Judges should not ask who has an abstract right to some piece of property (if there is a question of ownership, how can it be used to maximize social welfare. You have two working businesses: farmers growing crops and ranchers raising cattle. The problem here is that the cattle are not respecting boundaries.They are going into the farmers field, trampling and eating their crops. The solution is the distribution of farmers and ranchers in the area: the ratio of crops to cattle – if low, fencing out, if high, fencing in. A traditional formalist judge would look at the statues and would ask who is responsible for taking care of their own property. Posner would say that judges should look at it through the view of economics that will be most efficient. ____________________________________________________________________________ a. Fencing out: refers to a property rights system in which damage caused by straying cattle is actionable at law only if the owner of the crops or other goods damaged by the cattle has made reasonable efforts to a fence. i. More cattle, fewer crops b. Fencing In: refers to a system where this duty is not imposed, so that the owner of the cattle must fence them in if he wants to avoid liability. ii. More crops, fewer cattle Why don’t we censor as much as we used to? - There are free speech restrictions recognized by the judiciary - Picketing, obscenity, commercial advertising, threats, defamatory matter, radio and television broadcasts. - But there are far fewer restrictions now. - “It may be that as nations become wealthier and their people better educated and more leisured, the gains from restricting free speech – gains that have to do mainly with preserving social and political stability – decline relative to the costs in hampering social progress and in reducing the welfare of producers and consumers of ideas.” - The argument is that as a country is developing, perhaps censorship is necessary because the very sort of stability of the country is developing. As the country becomes richer, and more education, then the value of censorship lessens (the cost seems to be burdensome). So, we have all of these laws of censorship in place, and then we have these cases of literature (look at posner) Censorship 2: - The social dangers of free speech have now declined. - Therefore, it is more efficient to engage in ex post regulation rather than prior censorship - Defamation laws engage in ex-post regulation of the press as it censors the news (it comes AFTER what has been reported). - New York Times v. Sullivan - During the Civil Rights Movement, there was a group that took out an advertisement describing some events of police brutality against CR protesters in Alabama. Sullivan sued the NYT: claimed that he had been defamed or liable by the advertisement made in the NYT. The Supreme Court had to decide on a way to deal with this. They came up with a standard called “the actual malice standard.” Says: if you are going to sue a newspaper or any news entity for defamation, and you are a public figure: you have to prove ACTUAL malice and actual malice is a very hard standard to prove: recklessly false or knowingly disregarding the truth. - Making the defamed have to pay the cost of a suit. - The distinction between public and private figures makes sense because the value of information about public figures is worth more than information about private figures. - It is also easier for public figures to RESPOND. - There is a demand for information about public figures that there isn't about us. - Public figures will run to press conferences to know the side of the story of the public figure. Establishment Clause and School Prayer: Regents Prayer Engel v. Vitale - Parents challenged the school because it established a religion by forcing these kids to pray. (Ended up getting rid of school prayer because it would cause dissension between religious groups. Our founders knew about the European wars of religion and we don’t want specific religions looking for government favor). - You could argue that its good to make people recite this prayer because it creates more moral people. The argument Posner prefers is that the government is providing something that not everyone wants. Spending time and money with this prayer is NOT efficient. - It is a SUBSIDY to religious people at the expense of non-religious people. - If people WANTED to, they would SEEK OUT RELIGIOUS schools to send their schools to. Minow, Law and Disability Dilemma of Difference When does treating people differently emphasize differences and thus stigmatize or hinder them? When treating people the same, insensitive to difference and thus stigmatize or hinder them? Sometimes the law will treat people who are different, differently and limit their opportunities in life. Sometimes it will treat them the same, and will limit their opportunities in life. ○ Foreign language-speaking children: A group that can speak English vs a group that can speak English: how do you get them to be treated fairly? You can treat them differently by putting them into two separate groups: Spanish speaking-class vs English speaking-class. The other is to not treat anyone differently and to put them all in the same class, however, this can not be efficient since it can cause individuals to feel inferior, face discrimination, and fall behind at work. ○ Handicapped and developmentally disabled children ○ Members of religious minorities Sometimes religions require fasting during Ramadan. During Ramadan, how should one deal with a 4PM class? ○ Pregnant women Pregnant women have needs that men do not need. 5 Faulty Assumptions of Formalism: (1) A formalist may want to say that difference is intrinsic (lies in the person labeled as different); not a comparison - Perpetuates dilemma of difference by using categorical approach - Categories are natural and inevitable - Either Or questions - Based on the assumption that difference is discovered but discovered is not discovered, but invented.  - You can either pass the eye test or fail the test (those who fail get put in a certain box, others in a different box). Those who can pass (2) Norm need not be stated - Hierarchies - Legal reasoning feels natural because the general language is embedded in pre-existing hierarchies - Pregnancy: men are the norm, women are different - Womens upward mobility is threatened - Other horn of dilemma: - Laws favorable to women also may be challenged. - We can create laws that benefit women, promise pregnancy leave, and say that their wage will not be affected. - This creates astigmatism against women: why do they get all that leave and I don't? Pregnancy: Solution: leave for both men and women Distinction between workers with kids and those without - What about people who care for elderly parents Flexibility for all workers: flexible hours, job sharing, leaves for family duties - Work from home after COVID may have helped here - Also, work from home is usually only available to a white collar worker (3) The observer can see without a perspective. - Claims of “impartiality” ignores role of judge - Impartial judge may reinforce biases of community - The display of a nativity scene (4) Other perspectives are irrelevant - Perspectives may be unknown - Wisconsin v. Yoder: The Wisconsin law required children to stay in school until 16. The Amish community did not like that, they wanted to remove them at the age of 13. They thought exposure to school from 13-16 would corrupt their mind. - Perspective of the Amish was respected, but what about the children? - Kids are being pulled out of school at age 13, doing what the Amish community does (5) The status quo is natural, uncoerced, and good. - Government neutrality: arrangements are assumed to be neutral - If the government is neutral, then one would assume that the way we treat groups right now might not be neutral. - Challenges to the status quo have a different status from omissions - Things that the status quo might have missed is fine, but challenges to the status quo would be deemed suspect.  - Prevailing societal arrangements aren’t forced on anyone - Law cant have a clear causal effect on society. Cleburne Living Center v. City of Cleburne (1985) - Location of a community home for the “mentally disabled” - A zoning ordinance. Equal Protection Analysis (GO OVER FOR FINAL) Strict Scrutiny: ○ Compelling state interest for a legislative classification (used for race), least restrictive means. ○ Suspect classifications: if a classification is found to be suspect, not normal, then the court is going to apply what is called a strict scrutiny test. ○ The law is as narrowly drawn as possible to fulfill what the government wants (affecting as few people as possible in order to get what you want). ○ Explicitly a reaction of Jim Crow Laws (CAN NOT HAVE RACES TREATED DIFFERENTLY) ○ Sheep jumping over the fence (5 foot fence vs 3 ft fence) Intermediate scrutiny: ○ Important governmental objectives, substantially related to achievement of these objectives ○ Quasi-suspect classifications: in the past, the most famous quasi-suspect classifications were associated with gender. ○ Some will pass intermediate scrutiny, others will most likely not. Minimal scrutiny: rational basis test ○ The government law is alright as long as it has a rational basis (what the courts typically apply) ○ A law that requires a photo ID to vote: poor people (older non-white people) oftentimes did not have a photo ID which essentially prompted the idea that this law was to keep older non white individuals from voting. But, the government would say that this law has a rational basis: they exist to prevent voter fraud. ○ Not to allow blind people to drive because they will inevitably crash. The mentally disabled WANTED to be classified as Quasi-suspect where they would be reviewed with scrutiny. (1) Abnormal Persons Approach 2 Classes: Normal and Abnormal White, propertied males were “normal” Infants, married women, mentally disabled, mentally ill, insane were “abnormal” Normal person can make rights claims The problem with this approach is that it ignores all the contexts of difference. Buck v. Bell (1927)  VA law that provided sterilization was upheld Eugenics movement: one thing that is of the case of the intellectual class of the late 19th century was that they loved eugenics as a rule State colony for epileptics and the mentally disabled in Lynchburg, Va (BELL) Carrie Buck: impregnanted by rape. ○ Committed to the hospital, gave birth, and then the colony wanted to sterilize her because she was mentally disabled and a moral delinquent. ○ “Shiftless, ignorant, and worthless class of anti-social whites.” described as the family so they prejudiced against her. Decision: 8-1 Against Buck ○ “Feeble Minded,” and “morally delinquent” ○ “Shiftless, ignorant, and worthless class of anti-social whites. ○ Oliver Wendell Holmes: “Three generations of imbeciles are enough.” Back to Cleburne: Opinions all illustrate some of the problems with abnormal persons approach First, what was the result?: Won the case, but was not identified as a quasi-suspect class The opinions? White, Stevens, Marshall (2) Rights Analysis Approach Legal rights belong to everyone if they can prove worthy. Individuals are autonomous and self-determining. Those denied seek the rights of “normal people” But, for some groups, new “special” rights are sought Rights claim are inherently unstable Mental institutions in the 1970s: willowbrook was a place where oftentimes, mentally disabled people were thrown together in this one asylum. The conditions were horrible and was exposed. Institutions were seen as bad: the argument made was that people placed in these institutions had the same rights as everyone else so there was a mass shut down. But people with disabilities NEED special requests so without institutions, they now live in the streets and that's not a better place. ‘ (3) Social Relations Approach Look to the particular Look toward relationships Imagine the perspective of the mentally disabled in Cleburne Be mindful of the social meanings of inclusion and exclusion Difference grows out of comparisons. Dialogue: Why don’t residents want to have the mentally disabled living in their neighborhood? - By talking to each other, people cna get beyond labels. Minnow wants to talk about the fact that the law can facilitate these types of discussions to ease the mind of people. Potential problems with social relations May be difficult to enact  Without interaction, either or proposals re-emerge Risks for vulnerable if the patterns of power remain unchanged Minnow and Posner want to look to the social sciences because they are true legal realists in trying to figure out how to get beyond some of the more restrictive categories of legal formalism. Questions going forward: Is Minow criticizing the rights-based approach because rights are not always in accord with justice? Does anyone think that rights exhaust justice? Rights analysis and the difference of dilemma: Rights by themselves can not necessarily do the work because these people oftentimes have needs that other people don't. Back in the 1970s, many people engaged in a project called legal liberalism where you can use the courts to expand the rights of certain courts. That you can achieve great political and social change Kennedy, Law School Central Claim of CLS: - The Ideas law, society, and politics are all constructed for human purposes. - They do not reflect an objective reality - The concepts create a world that favors the interests of some over others - For example, the concepts affect how we determine what can be addressed by law. (or what law can accomplish) - The haves will always triumph over the have-nots Getting into Law School: - Elite legal education plays a role in preserving a hierarchy - Virtually everyone sees admission to law school as a great success - This covers what law school really does: it provides ideological training for willing service within the hierarchies of the corporate welfare state. What is a student on the left to do? - The mission of law school is not a problem for conservative students - Students on the left see the law as giving him/her the tools to challenge hierarchies - Initial hope is quickly destroyed - Law school is not making great social change Law school professors create Hierarchical environment - Patriarchal family and a kafkalike riddle state - Socratic method - You are given very difficult cases to read, cold calls, humiliation - Guess what the professor is saying or be humiliated and mocked in front of 150 students.  - The initiation of understanding the readings of law is to bring you into the legal profession: to think like a lawyer. - Passivizing classroom experience translate to a passive attitude toward the content of the legal system Relationships mirror hierarchy: - Student/teacher - Junior associates/senior partners - Lawyers/judges: if you are a smart lawyer, you will flatter and form good relationships with judges. - If you feel you’ve succeeded, you will feel forever grateful. If you’ve failed, you’ll blame yourself forever → you will internalize any sense of blame to yourself. Kennedy’s Alternative Curriculum: - Instead, law schools could provide systematic skills training. - Constant, detailed feedback - More proficient students would result - With the system as it stands, there is little possibility that a student can go anywhere but a big law firm. - (Also this is good for law schools: lawyers at big firms make more $$$ and possibly larger contributions) Williams, Rights - Law imposes language of privatization for publics problems - Privatized language cannot address problems of racism or poverty - Language of the law must be challenged - Can we assume that the language of the law can help with things like racism and poverty? No, because of privatization. The consequence of legal language: - Legal language continues to objectify humans beings - Property is private, but also institutional; racism is social - Racism cannot be addressed via language of privacy Rights: The Lease Contrasts between Peter Gabel and Williams She and her friend Peter Gabel are both subletting an apartment in NYC. She tells the story about how Gabel behaved very differently from her Gabel: He gave $900 to people he just met, no receipt, and no key exchange, and did not sign a lease because it held “too much formality”  Signed a printed lease that was detailed, found an apartment in a building that her FRIENDS owned The reason that Gabels acted different than Patricia Williams is because she's a black woman and hes a white man. The Color of the Road: Purple vs Black (QUESTION!!) - She and Gabel are both lefty law professors who saw their positions differently. She uses this to talk about Rights Importance of Rights: - Americas failures have come as a result of a failure of rights commitment, rather than rights assertion - Rights aren’t the problem; the constricted discourse of law is the problem - Rights empower and make visible - “Should Trees Have Standing?” Christopher Stone - How can we protect the giant sequoias from being chopped down? From realizing or seeing them as objects that have RIGHTS - Rights respect one's agency to assert that I am a person and that I should be treated with an equal level of dignity. Rights and African-Americans - Rights provide a source of stability - Needs do not provide stability - Poets, blue singers, African-American literature evoke needs magnificently - That does not mean that these needs were met - The legal system did not provide black individuals, even freed black individuals, with structured expectations, promises, or reasonable reliances of any sort.” - Hart and the importance of rights: - Williams and Hart are on the same page by making an argument centered on liberal political theory