Essay Topic: Torts and Torture - Regulation and Ideology Theories and Cases Flashcards
Bybee memo
What was it/what happened?
When?
Link to theory?
- Torture memorandum (legal document) signed by Jay Bybee
- Outlines torture of terrorists as ‘enhanced interrogation techniques’ and as acceptable
- 2002 (after 9/11 attacks)
- Textualist: reading the memo literally or using this cynically
- Cultural ideology: Bush’s war on terror ideology after 9/11 attacks
The Davis case
What was it/what happened?
When?
Link to theory?
- Court case between Davis v. United States
- Davis accused of murder, said ‘maybe I should talk to a lawyer’
- Court disallowed this as invocation of Miranda rights
- Taken as statement of right to lawyer rather than request for one
- Textualist ideology: interpret utterance literally
- Gricean interpretation principle: utterance should be interpreted in context and as relevant response to conversation
- Link to Wasela case
Wesela V. United States
What was it/what happened?
When?
Link to theory?
- Court case man threatened to kill wife and killed family cat
- 2000
- “could I get a lawyer”
- Interpreted as a question about counsel rather than request
- Link to Davis case
- Textualist ideology: interpret utterance literally
- Gricean interpretation principle: utterance should be interpreted in context and as relevant response to conversation
Riggs V. Palmer
What was it/what happened?
When?
Link to theory?
- Grandson killed Grandfather to guarantee he got the inheritance money
- Controversy over whether grandson is still entitled to inheritance
- 1889
- Textualist: Be punished for murder but get inheritance as there’s no legal clause stating he shouldn’t
- Pragmatist: if he get’s inheritance he will benefit from his crime + promote murder in future
Donoghue V. Stevenson
What was it/what happened?
When?
Link to theory?
- Paisley Snail case
- Dead snail found in bottle of drink and lady sued as she became ill
- Broad interpretation: Company have a duty of care
- Narrow interpretation: Manufacturers in the 1920s expected to check their opaque bottles for dead sails
Textualism
What is it?
Names and dates?
- Ideology whereby a text is seen to mean literally what the text says and not what the writer may have intended but not written - Justice Scalia 1997
- No room for interpretation
- Constitution has a fixed determined meaning - Justice Scalia 1989
Ideological beliefs
Name and date
They determine structure of perception and consciousness
Griffiths 1970
What do language ideologies do?
Name and date
- Rationalise language patterns and render some patterns as normal
Irvine 1989
What was said about ideologies?
They are…
Name and date
Most are invisible and not consciously thought of
Ainsworth 2008
Conflicting point to Bybee Memo
Name and date
- 14th amendment states confessions are only legally valid if sought under voluntary conditions
- Bybee memo confessions are not legally valid?
Interpretation and relevance
What is the theory?
Name and date
- Grice 1989
- Conversation is rule governed and participants interpret responses relevant to context
- Parties must share frames of cultural meaning for successful interpretation
- Literal, acontextual interpretation results in inaccurate assessment of meaning
What was claimed about legal decisions?
Name and date
Goldman 1979
Legal decisions are more influenced by political ideology than precedent
Pragmatism
What is it?
Names and dates x2?
- Ideology where less interested in precedent and more so orientation towards the future (Rosenfeld 1996)
- Looks at consequences and future not just the present
- Promotes prediction, problem solving and action (Peirce 1870)
What was said about utterance interpretation?
Narrow and broad?
Name and date
Posner 1995 Pragmatist
- If an ambiguous interpretation of an utterance (with multiple interpretations) entails terrible results it is good reason to reject it
- Reading of constitution narrowly or broadly is down to one’s views
Intentionalism/Originalism
What is it?
Name and date?
- Ideology whereby literary work should be judged in terms of the author’s intentions for meaning
- Opposes textualism
- Assumes there is a single unified meaning behind a text
- Brest 1980
