CLI - Theorists and Paradigms COPY

Question 1

How does Saul Levmore explain uniformity and variety in ancient and modern tort law?

Answer 1

Hypothesis: More uniformity across legal systems when theory tells us that a rule matters more Common Substance: societies w/writing face similar social issues and negligent actors generally pay (exodus, Code of Hammurabi, Mongolian tribal law) Procedural Variation: example: negligence standard in metropolitan areas like Babylon (Code of Hammurabi) v. splitting rules when negligence is hard to prove (admiralty law, Mongolian law)

Question 2

Montesquieu thesis for preservation of liberty?

Answer 2

liberty can only be preserved through the separation of powers

Question 3

aim of gov a2 Montesquieu?

Answer 3

ensure one man must not be afraid of another

Question 4

Montesquieu hypothesis for how law should vary from place to place?

Answer 4

Law should be specialized to a culture’s “climate” and other local conditions Local Conditions: climate, commerce, main occupation/export, religion, demographics, preferences, customs, etc. Example: Resources Curse: Way things are produced determines the form of governance. e.g., diamond mine economies are such that the resource is best extracted through authoritarianism legal structures

Question 5

What else do scholars look to to explain variation in legal systems across different locations?

Answer 5

Path dependencies: i.e., inertia – difficult to change once set down a path E.g., keyboards are in qwerty because wanted to minimize hitting same keys in nearby locations Justifications: Switching costs are enormous – these are called network effects We would expect more convergence when switching costs decrease Cultural dependencies - issue with these explanations is that cultures do change, so its effect on law will be gradual if anything

Question 6

What is Martin Shapiro’s idealized form of Courts?

Answer 6

Idealized form of courts: (1) Independent judge (2) applying standard legal norms (3) after an adversarial proceeding (4) to arrive at a dichotomous decision where one side is given the right

Question 7

What are the basic steps of any legal dispute, and at which step does a conflict rise to the level of a legal dispute?

Answer 7

Naming – named a perceived injury Blaming – identified responsible party Claiming – confront other party, ask for remedy ~~~~Additional Steps for Adjudication~~~~ Dispute Legal claim Adjudication

Question 8

What is the Triad Paradox a2 Martin Shapiro?

Answer 8

Individuals solve disputes by appealing to a third person Triad paradox: as soon as the third individual chooses who to side with, the loser no longer conceptualizes a triad—but a situation of 2 v. 1

Question 9

What are some solutions to the triad paradox?

Answer 9

Consent: Disputants consent to the norm governing the proceedings, the judge, and to abide by the ruling Law and Office: Neutral principles of law and the office of justice permit one side to not perceive dispute resolution as 2 vs. 1

Question 10

What is the conflict Continuum and how do cost of resolution and the parties’ control over the outcome of the dispute vary across it?

Answer 10

Question 11

How does the role of a 3rd party vary across the conflict continuum?

Answer 11

Mediator vs. arbitrator: arbitrator is expected to craft a resolution to the conflict rather than assist the parties in coming to their own

Shapiro Hypothesis: Natural development from picking a neutral 3^rd party TO picking “big man” to ensure enforcement TO accepting an official judge - legitimacy of adjudication depends on law and office

Question 12

What types of disputes are more conducive to mediation and which are more conducive to arbitration/adjudication with dichotomous outcomes?

Answer 12

Societies where disputes arise from parties who will need to deal with one another again at arm’s length tend to opt for mediation approaches rather than dichotomous ones to maintain good relations

E.g., Imperial China, Shashta County, labor contracts

Question 13

Which aspects of mediation do common law systems retain? (a2 Shapiro)

Answer 13

​Losers pay more than they want, and winners receive less than they think they deserve

Comparative negligence, money damages, prevalence of settlement, plea bargains, contract prescribe how to litigate case

Question 14

According to Shapiro, how does dispute resolution evolve as societies become more complex?

Answer 14

Continuity: Societies substitute law for consent and office for free choice of mediator as they become more complex

Natural development from tailoring norms to dispute TO ready-made norms to dispute TO preexisting compulsory legal rules

Natural development from picking a neutral 3^rd party TO picking “big man” to ensure enforcement TO accepting an official judge

Question 15

What are the functions of a court a2 Shapiro?

Answer 15

resolving disputes, social control, rulemaking

Question 16

How did courts help unify empires a2 Shapiro?

Answer 16

• Single set of rules unify diverse regions w/in empire
• Rules were combo of those of the conquered and conqueror to unify the upper classes of both societies
• Court was superior to previous means of dispute resolution to help consolidate legitimacy of an imposed regime

Question 17

How do courts impose/maintain social control according to Shapiro and what is one issue that societies encounter in their pursuit of that goal as their dispute resolution mechanisms evolve?

Answer 17

• Whenever judges utilize pre-existing rules, the rules invariably embody some form of public interest, exterior to the dispute and unlikely to correspond with what the disputants would have consented to
• The social logic of a triad may be a more constant source of legitimacy than the substitution of office and law for consent
  
  • When two parties resolve their dispute by appealing to a judge, they introduce a third interest: that of the government
  • When parties see the interests of the regime to be hostile to their own, they will avoid formal procedure
• 2 vs. 1 phenomenon recurs when office and law are substituted in the criminal context because one party is actively coercing into attendance or in torts suits where the law obviously favors one side

Question 18

How do courts make law and what is one issue that arises when they do so a2 Shapiro?

Answer 18

• Law-making is essential because no society has ever set down a complete body of preexisting law designed exactly to meet every potential conflict
  
  • Application of “preexisting law” in idealized form is not accurate
• Because of court’s lawmaking function, the loser inevitably feels that they have been legislated against rather than the case being impartially resolved

Question 19

How have different regimes responded to court lawmaking? (Shapiro)

Answer 19

• Yield and become less centralized
• Most common: Combine judiciary with executive branch (China)
• Nondelegation canon: Systematically draw cases from judiciary that are interfere with the actions of another branch
• Czarist response: Intervene to pull remove cases from the courts
• French response: Create systems of judicial recruitment that ensure courts are faithful agents of the regime

Question 20

What is law a2 John Austin? + 2 key ideas

Answer 20

• Hypothesis: law is an order backed by force and sanction
  
  • Law is all sticks (no carrots): Law is NOT an inducement by giving a benefit
  • Norms are not law because they are generally not backed by force
  • International law is not real law because there is no central sovereign
    
    • Universal commands require a commander
  • Top-down Approach: Law is set by political superiors on their inferiors
• (note: Austin is a noted legal positivist – a position that has fallen out of fashion)

Question 21

How does Lon Fuller respond to John Austin’s definition of law?

Answer 21

Contrary to Austin, Fuller asserts that an internal morality is required to create law

Question 22

What eight standards does Lon Fuller use to judge excellence in legality?

Answer 22

• Hypothesis: Eight criterions to constitute law
  
  • Failure to achieve rules at all—issues resolved on an ad hoc basis
  • Failure to publicize or make known to affected parties
  • Abuse of retroactive legislation
    
    • Cannot guide action and undercuts integrity of existing rules
  • Failure to make rules understandable
  • Enactment of contradictory rules
  • Rules that require conduct beyond the powers of the affected party
  • Introducing such frequent changes that one cannot orient their actions to the law
  • Failure of congruence between the rules as announced and as administered
• Without any of these, it is impossible to say that there is a legal system at all
• Utopia is not the exact opposite of the eight failures eight standards are just a way to judge excellence in legality