Chapter 7 & 8 Flashcards
who turned many countries into active legislation instruments?
Bentham
What did Bentham beleive?
“ He believed that only fully developed popular customs could form the basis of legal change. Since customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national, never universal
how does shifts in law impact the community?
ppl may come to think that poverty is bad and laws should be created to reduce it in some way or ppl may come to think business ppl should not be free to put just any kind of food stuff on the market without proper government inspection
example of social change directly induced by law
A good example of social change directly induced by law was the enactment of Prohibition in both Canada and the United States to shape social behaviour- it was also a failure in both countries showing that there are limits to the efficacy of law to bring about social change
traditional authority
“ Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order but, rather, a matter of personal loyalty. The “rule of elders” is an example of traditional authority.
charismatic authority
Charismatic authority bases its claim to legitimacy on devotion to the specific and unusual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelations, or in his or her exemplary qualities. Individuals exemplifying charismatic authority include Moses, Christ, Mohammed, and Gandhi.”
rational legal authority
“Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority to issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order. The individuals who exercise authority of office are shown obedience only by virtue of the formal legality of their commands and only within the scope of authority of their office. Legal authority is not entirely conceptually distinct from traditional authority, although the distinction is nonetheless worth having. In modern society, “legality” suggests a component of rationality that traditional authority seems to lack
2 points Weber made
- The first is that conflict of interest provides the framework in which laws are framed and change is brought about. Consequently, social stratification in a society will determine to a large extent the part that laws will play in bringing about changes, based on the selectiveness and preferences exercised by those who promulgate those changes.”
- The second point concerns the significance of the use of power to back up those changes. Studies of the legislative, judicial, and administrative processes in a society could lead very quickly to a discovery of not only who wields the power in society but also what interests are significant and influential in that group. Thus, the law as an instrument of a change can be viewed in the context of the organization of power and the processes by which interests are established in everyday social life; the resulting changes might very well be evaluated in those terms.”
Aboriginal efforts- 3 provisions within the constitution act
- guarantees of rights and freedoms do not detract “from any Aboriginal, treaty or other rights or freedoms” that Aboriginal people possess as the result of the Royal Proclamatio
- recognizes and affirms “the existing Aboriginal and treaty rights of Aboriginal peoples”—a significant phrase that acknowledges Aboriginal rights as inherent rather than delegated rights; and
- guarantees the convening of a constitutional conference that would include “an item respecting constitutional matters that directly affect the Aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada” within one year of the act coming into force
“The link between law and morality in the making and unmaking of law raises two questions
“(1) What needs to be done in considering a change in the law when moral opinion is divided? Are there criteria other than individual likes and dislikes to which appeal can be made?
“(2) How can the line be drawn between that part of morality or immorality that needs legal enforcement and that which the law ought to leave alone
social factors in resistance to change
“There are several factors that may be construed as potential barriers to change. They include vested interests, social class, ideological resistance, and organized opposition”
vested interests in resistance to change
Change may be resisted by individuals or groups who fear a loss of power, prestige, or wealth should a new proposal gain acceptance. There are many different types of vested interests for which the status quo is profitable or preferable. For example, residents in a community often develop vested interests in their neighbourhood. They often organize to resist zoning changes or the construction of correctional facilities nearby
social class in resistance to change
Rigid class and caste patterns generally tend to hinder the acceptance of change. In highly stratified societies, people are expected to obey and take orders from those in superior positions of authority or power. The prerogatives of the upper strata are jealously guarded, and attempts to infringe upon them by members of lower socioeconomic groups are often resented and repulsed. In most cases, there is a tendency for the upper classes to cherish the old ways of doing things and to adhere to the status quo”
Kohlberg did extensive work on moral development identifying 6 stages
- described as an obedience and punishment orientation. This stage involves “deference to superior power or prestige” and an orientation toward avoiding trouble”
- instrumental relativism, is characterized by naïve notions of reciprocity. With this orientation, people will attempt to satisfy their own needs by simple negotiation with others or by a primitive form of equalitarianism. Kohlberg called these two stages “premoral.”
- personal concordance, is an orientation based on approval and pleasing others. It is characterized by conformity to perceived majority beliefs, whereby people adhere to what they consider to be prevailing norms
- law and order stage. People with such orientations are committed to “doing their duty” and being respectful to those in authority. Stages three and four combine to form a conventional moral orientation”
- the social contract stage; it involves a legalistic orientation. Commitments are viewed in contractual terms, and people at this stage will avoid efforts to break implicit or explicit agreements.
- highest stage of moral development is individual principles. This emphasizes conscience, mutual trust, and respect as the guiding principles of behaviour”
fatalism
refers to feelings of resignation or powerlessness. People who are fatalistic perceive themselves as lacking control over their lives and, for example, believe that everything that happens to them is caused by God or evil spirits. Such a fatalistic outlook undoubtedly results in resistance to change, for change is seen as human-initiated rather than having a divine origin.
what did Roman law allow individuals to do?
“Roman law allowed individuals to argue cases on behalf of others; however, those persons were trained not in law but in rhetoric. They were called orators and were not allowed to take fees.
jurists
individuals who were knowledgeable about the law and to whom people went for legal opinions- “ They were called juris prudentes, but these men learned in the law did not yet constitute a profession.
how did practicing law come to be?
“Only during the Imperial Period (approximately 44 B.C. to 410 A.D.) did lawyers begin to practise law for a living and schools of law emerge. By this time, the law had become exceedingly complex in Rome. The occupation of lawyers arose together with a sophisticated legal system, and the complexity of that system made the Roman lawyer indispensable”
in middle ages what 3 functions did lawyers have?
by the Middle Ages, the lawyer had three functions—agent, advocate, and jurisconsult”
what did attorney originally mean?
The word attorney originally meant “an agent, a person who acts or appears on behalf of someone else.” In this role of agent, the lawyer appeared in court to handle legal matters in place of his client.”
legistes
men of law
- representing clients of court
when did the distinction between agent and advocate appear?
“The distinction between an agent and an advocate appeared when the lawyer went to court with a client to assist the client in presenting a case.”
how was the advocate trained?
In addition to law the advocate was trained in the art of oratory and persuasion
The function of a lawyer as a jurisconsult
“The function of a lawyer as a jurisconsult was to provide both legal advice and to act as a writer and teacher.”
Law is considered one of the three archetypical
clergy, medicine and learned profession
what are the stages needed to be passed for occupations now viewed as professions?- law, medicine etc.
-Training schools established.
-University affiliation of training schools
-Local professional associations started.
- National professional associations evolved
-State licensing laws
-Formal codes of ethics established”
crucial element in professionalization process
market control—the successful assertion of unchallenged authority over some area of knowledge and its professional instrumentation”
before 13th century what could a litigant do?
a litigant to appoint someone to do his or her technical pleading”- “This person was not a member of a separate profession, for apparently anyone could act in that capacity. The person who did the technical pleading eventually developed into, or was superseded by, the attorney who was appointed in court and had the power to bind his employer to a plea”
who were the first professional lawyers?
they were judges who trained their successors by apprenticeship
when did being a laeyer become a profession?
By the end of the 18th century law in England had become a full fledged profession
- “Members of the profession considered the law a full-time occupation, training schools were established, universities began to offer degrees in law, and a professional association evolved in the form of a lawyers’ guild”
- Practice of law required lisenceing and formal codes of ethics were est
what did attorney’s used to be called?
solicitor
2 branches of the Chambre des Notaires due Quebec
- “the principal function of the notaire is to draft or receive acts and contracts (e.g., marriage covenants, mortgages on immoveables, trust deeds, and deeds of sale involving mortgages) that parties wish to have authenticated”
- “Notaires specialize in non-litigious matters and have exclusive rights “where there is no question between the parties as to the law or the facts
role of the advocat in England and Quebec
“the role of the avocat, like that of the barrister in England, focuses upon areas of contention. In Quebec, avocats have the exclusive right to plead cases in court that involve a conflict between the parties. Every practising avocat in Quebec must be a member of the Barreau.
what does the law and society act establish?
Law and society act est the law society of upper CAN as a self governing body w exclusive authority over admission of barristers and solicitors and the control of their education
immigrant lawyers under law and society act
Under law and society act immigrant lawyers were allowed to practise provided that they joined the society and agreed to conform to its rules
law and society act functions
Law and society was additionally empowered to assume a wide range of functions including the est and maintenance of professional standards and the dispensing of discipline when those standards were breached
how to obtain lisence to practice law from law and society
“To obtain a licence to practise law from the Law Society required five years’ study as a legal apprentice. However, beginning in 1854, the apprenticeship period was shortened for those who earned the University of Toronto’s Bachelor of Civil Law degree. The Law Society would later create, in 1862, its own law school, Osgoode Hall, named after the first chief justice of Upper Canada,”
By the 1920s and 1930s, the legal profession in Canada, when compared to its counterpart in the United States, revealed four distinctive features:
- admission to the profession was far more difficult, demanding, time-consuming and expensive in Canada. In the United States a considerably more casual, laissez-faire approach obtained; the only entrance requirement for the Indiana bar, for example, was “good moral character,” and only a few states had mandatory exams or prescribed periods of study of clerkship”
- admission to the bar in Canada was controlled (except, anomalously, in Manitoba) exclusively by the law society of the province. This was the practice “in Great Britain as well, but the common practice in the United States put control of admission fully into the hands of the bench”
- the law societies in Canada acquired piecemeal, or simply assumed, far more powers of self-governance and control over the profession than equivalent associations in the United States”
- [t]he autonomy of the Canadian legal profession created a smaller, more highly trained, more cohesive, and, as a result, more elitist profession than that in the United States.”
what is a big similarity between US and CAN law system
- white males have historically dominated the profession. Women, particularly married women, were not considered suitable for the practice of law. They were seen as delicate creatures, equated with children and lunatics, and lacked full legal rights
- both historically discriminated against ethnic and racial minorities. This was particularly overt in the United States, where the legal profession explicitly discriminated against blacks and where blacks were excluded from the American Bar Association and many law schools until the 1950s
- “During recent decades, Canadian lawyers have become a more diverse group; the proportion of lawyers born in Canada has decreased slightly while “the proportion of different ethnicities, genders, nationalities, and religious affiliations has changed significantly
racialized vs white lawyers
“racialized lawyers tend to occupy less favourable niches in the profession”; when “[c]ompared to Whites, racialized lawyers are more likely to be law firm associates and employees, to work for government or outside of law offices and governments, and to be self-employed without paid help. They are less likely to be partners in a law firm or sole practioners w paid help
gender difference among lawyers
Women and visible minorities of lawyers earn less than their white male counterparts
Aboriginal vs white lawyers
“Aboriginal and racialized lawyers, compared to White lawyers, are more likely to be in sole practice or in a legal clinic and less likely to be law firm partners”; it additionally reported that in comparison to White lawyers, Aboriginal lawyers are more likely to work in government. In relation to the location of their employment within Ontario, it detailed that Aboriginal lawyers are less likely to work in Toronto and much more likely to work in the Central North, Northern Ontario, Eastern Ontario, and Ottawa”
LGBTQ lawyers
LGBTQ lawyers are less likely to be sole practioniers and law firm partners and 3x more likely to be in education to work in a legal clinic and to work for government
what has become one of the fastest growing professions in CAN?
a lawyer
how are many new lawyers feeling?
many “first- and second-year lawyers are frustrated with being ‘out of the loop’ for stimulating work, instead finding themselves relegated to a form of ‘hazing’ (long hours, high volumes of routine work, relatively low pay).” Key stressors identified included excessive demands on their time, heavy workloads, and diminished opportunities for a personal life.
what kind of lawyers were the majority in CAN?
“the majority of lawyers in every Canadian province and territory were either sole practitioners or practised in small firms composed of ten lawyers or fewer
- majority of lawyers in private practice
roles of private practice lawyers
- One is counselling. Lawyers spend about one-third of their time advising their clients about the proper course of action in anticipation of the reactions of courts, agencies, or third parties.
- Another is negotiating, both in criminal and in civil cases. Plea bargaining is an example of negotiation and is widely used in criminal cases (Palermo et al., 1998). Pretrial hearings and conferences in the attempt to reach a settlement and avoid a costly trial are illustrative of the negotiating role of lawyers in civil cases.
- Drafting, the writing and revision of legal documents such as contracts, wills, deeds, and leases, is the “most legal” of a lawyer’s roles, although the availability of standardized forms for many kinds of legal problems often limits the lawyer to filling in the blanks.
- Litigating is a specialty, and relatively few lawyers engage in actual trial work. Much of the litigation in Canada is generally uncontested in cases such as debt, divorce, civil commitment, and criminal charges.
- Some lawyers also engage in investigating. In a criminal case, for example, the defence lawyer may search for the facts and gather background information in support “of the client’s plea.
- Finally, lawyers take part in researching—searching, for example, for precedents, adapting legal doctrine to specific cases, and anticipating court or agency rulings in particular situations. Much of this research activity is carried out by lawyers in large firms and appellate specialists. Experienced lawyers working in their specialty (or those working for a small fee) usually do little research”
what is defined as private practice for lawyers
- solo practitioners
- big law firms
Solo practitioners
Solo practitioners are generalists, and they operate in small offices. Many of these lawyers engage in marginal areas of law, such as collections, personal injury cases, rent cases, and evictions. They face competition from other professionals, such as accountants and real estate brokers, who are increasingly handling the tax and real estate work traditionally carried out by the solo practitioner. classic work emphasized how the pressures to make a living could force individual practitioners to submit to pressures to violate legal ethics; a later study”
difference between individual and firm practitioners
“There are also differences between individual and firm practitioners in acceptance of and compliance with ethical norms. the individual practitioner was the most likely to violate ethical norms (for example, soliciting kickbacks)”
how are the sectors of law seperated?
“The two sectors of the profession are separated by the social origins of lawyers, the schools where they were trained, the types of clients they serve, office environment, frequency and type of litigation, values, and different circles of acquaintance; the two sectors “rest their claims to professionalism on different sorts of social power”
how do federally appointed judges get this job?
In CAN federally appointed judges must be lawyers who have been members of a provincial bar for a minimum of ten years
- “Canada’s federally appointed judiciary continues to be drawn “almost exclusively from the ranks of men and women who support the Conservative and Liberal parties”
what is CAN highest court of law?
Supreme court
supreme court judges- how their job looks
“Supreme Court judges are appointed and paid by the federal government and may continue to hold office until they reach the age of 75”
“Several factors account for the variation in lawyers’ incomes
They include the type of practice (firm or solo), the type of clientele (corporations or individuals with “minor” problems), the reputation of the law school attended, achievement in law school, age, length of practice, the degree of specialization, and the region and population of the place of practice (generally, the larger the community, the greater the average income). On the whole, lawyers in private employment do not fare as well as their corporate colleagues”
“There are several ways lawyers generate income
- One of these ways is encouraged by the billable hour model of assessing legal fees.
- hourly billing has been the traditional norm.”
“Canadian lawyers now also take cases on a contingency-fee basis. This is an arrangement whereby a lawyer receives a percentage of any damages collected
why do ppl not use a lawyer?
individuals may not label the difficulties they confront as “legal problems” per se or believe that legal wranglings will exacerbate, rather than quell, a conflict. As well, people may perceive that consulting a lawyer is a costly undertaking. Enforcing one’s legal rights and engaging the services of lawyers are expensive and, for some, simply prohibitive”
function of legal aid
Canada’s Legal Aid Program currently “provides funding to the provinces, through its contribution agreements respecting criminal legal aid, and to the territories, through the consolidated access to justice services agreements, for the delivery of criminal legal aid services to: young persons facing proceedings under the Youth Criminal Justice Act, and eligible, economically disadvantaged persons charged with serious and/or complex criminal offences and facing the likelihood of incarceration; proceedings pursuant
what does legal aid fund?
- “the delivery of immigration and refugee legal aid services in the six provinces
- “the delivery of Public Security and Anti-terrorism (PSAT) legal aid services to economically disadvantaged persons subject to terrorism prosecutions, Security Certificates issued under Immigration and Refugee Protection Act, and proceedings under the Extradition Act where the commission of a terrorist act is alleged
- the management of Court-Ordered Counsel in Federal Prosecutions on behalf of the federal government, where the Attorney General of Canada is ordered by the court to provide funded defence counsel
how has the system fallen short?
- “ it is notable that many provincial governments began slashing their legal aid budgets in the 1990s- reductions in transfer payments to the provinces for social assistance
- “while the Canadian Bar Association’s Code of Professional Conduct exhorts lawyers “to reduce or waive a fee in cases of hardship or poverty,” this does not create an enforceable obligation that obliges lawyers to serve all sectors of society equally
“The Youth Criminal Justice Act
Provides for appointment of counsel to represent a young person at any stage of proceedings if the young person is unable to retain counsel. However, this Act permits the provinces and territories to require youth or their parents to pay for their legal costs if they are fully capable of paying.
British Columbia v. Okanagan Indian Band,
the Supreme Court of Canada ruled in 2004 that trial judges could award costs before a trial is held and identified three criteria that would justify such an award: “the litigation could not proceed otherwise; the claim must obviously have merit; the issues raised transcend the individual litigant’s interests, are of public importance, and have not been resolved in previous cases. Nevertheless, in its 2007 decision in Christie v. British Columbia (Attorney General), the Supreme Court ruled that “there is no general constitutional right to state-paid legal counsel in proceedings before courts and tribunals” and that “provinces can impose some limits on how and when people have a right to access the courts”
how is pro bono work seen by other lawyers?
pro bono work is often seen by the legal profession “as a virtuous act of noblesse oblige rather than [as] a basic responsibility that comes with being a lawyer”
what is another way of providing low cost legal services
“A second way of providing low-cost legal services is through prepaid legal plans (Cotterman, 2004). In some countries, the idea of legal insurance has already caught on. In Germany, for example, prepaid legal plans are widely accepted, and about 40 percent of households carry legal-expense insurance. In recent years, unions have been the prime movers in organizing prepaid plans in Canada and elsewhere”
minimum requirement for entrance into law school
In both Canada and the United States, the usual minimum requirement for entrance into law school is three years of university education, although the majority of successful applicants in both countries possess an undergraduate degree upon admission. However, as demand for admission has increased
- “Admission to law school is determined to a great extent by the combined scores of grade averages at university and Law School Admission Test (LSAT) scores.”
LSAT
“The LSAT is an American-designed, standardized test taken by all law school applicants in both Canada and the United States and has been used in various forms
- “The LSAT is a one half-day standardized test. It consists of five 35-minute sections of multiple-choice questions designed to measure the ability to read with understanding and insight, the ability to structure relationships and to make deductions from them, the ability to evaluate reading, the ability to apply reasoning to rules and facts, and the ability to think analytically. There is also a 30-minute writing sample”
- LSAT score is on a scale of 120 to 180
- “ More and more studies conclude that the LSAT, or a combination of LSAT and grade average, does not predict law school grades for practical purposes of selection, placement, or advisement for candidates seeking entrance into law school.”
criticism of LSAT
“The use of the LSAT has repeatedly drawn criticism, and questions have been raised concerning the extent to which the LSAT can predict success in law school (Liu and Holland, 2008; Panter et al., 2008; Sackett, Borneman, and Connelly, 2008). Performance criteria of success in law school have traditionally been, and continue to be, grades obtained in formal course work”
purpose of law school
“The purpose of law school is to change people: to turn them into novice lawyers, and to instill “in them a nascent self-concept as a professional, a commitment to the value of the calling, and a claim to that elusive and esoteric style of reasoning called ‘thinking like a lawyer’”
Socratic method
the key to an understanding of the socialization of law students is best through this method
- This method of education “generally involves an intensive interrogation by the teacher of individual students concerning the facts and principles presumed to be operative” in a particular case
2 objectives of Socratic method
- Informational: instruction in the substantive rules of law
- To develop in the student a cognitive restructuring for the style analysis generally called thinking like a lawyer
what is a law student trained to do?
Student is trained to account for the factual details as well as legal issues determined by the court to be at the core of the dispute which may allow an intelligent prediction of what another court would do w a similar set of facts
bar admission
“In addition to establishing educational qualifications of would-be lawyers, bar associations restrict admission procedures to those who are morally fit to become lawyers. Applicants for admission to the legal profession must be certified as being of “good moral character” and must swear on oath that they will uphold the highest standards of moral integrity.”
Bar admission as interest groups
“In addition to restricting entry into the profession and seeking to control the activity of their members, bar associations are interest groups actively engaged in the promotion of activities that the bar considers vital to its interests, such as taking a leading part in shaping laws (especially on criminal and regulatory matters), structuring the legal system, and making recommendations for judicial positions
- “Of course, the bar associations, like all professional associations (and unions), have as one of their primary functions the promotion of the social, political, and economic interests of their members.”
important characteristic of a professional lawyer
- “One of the characteristics of a profession is a code of ethics. A profession involves, among other things, a sense of service and responsibility to the community, and the conduct required of a professional is delineated in a code of ethics for that profession.”
- “A lawyer’s code of ethics deals with his or her relations with clients, other lawyers, the court, and the public”
duties and responsibility lawyers have
(i) a representative of clients;
(ii) an officer of the legal system
(iii) a public citizen. It also contains a series of guidelines on matters such as fees, confidentiality of information, certain types of conflict of interest, safekeeping property, unauthorized practice of law, advertising, and reporting professional misconduct (Canadian Bar Association”
how often do lawyers or judges report misconduct
it is rare that lawyers or judges report lawyer or judicial misconduct
why do lawyers and judges fail to report misconduct?
-They feel that nothing will happen if they do report an ethical violation;
-they do not want to ruin someone’s career;
- they fear it would take too much time to testify in a disciplinary proceeding; they do not know where to report the misconduct; they are afraid of being sued if they do report misconduct”
what may occur if lawyers do not report misconduct?
“In general, disciplinary sanctions, such as reprimands, suspensions, or disbarments, are imposed only for serious instances of misconduct, such as criminal acts, mishandling of a client’s property, and flagrant violation of certain rules of professional conduct, such as breach of confidentiality.”- Some of these sanctions are in addition to possible criminal proceedings, which are handled separately by law-enforcement authorities, and they may be publicized as a form of “risk prevention.”
How serious are lawyers about professional responsibility?
lawyers “have been collectively long on righteous celebration of the importance of maintaining ethical standards, but short on any action and debate- “. Evidence of this is suggested (Arthurs, 1998; 2001) by the lack of institutional vigour in disciplining lawyers for breaches of ethical rules, the reactive stance taken by law societies, and the fact that at the beginning of the new millennium only four Canadian law schools had compulsory courses on legal ethics and professional responsibility.
