Law final exam Flashcards
core function of the law
-orderly resolution of disputes
disputes
-present in every society
-variety of dispute methods
-2 types of disputes- legal and non-legal
legal disputes
-2 principles forms of resolving:
-negotiation and adjudication
non- legal disputes
-historically methods like
- physical violence
-ritual
shaming
-supernatural agencies
-lumping it
-avoidance
-and ostracism have been used
main components of dispute resolution
-negotiation
-adjudication
-mediation
-arbitration
-hybrid process
negotiation
-disputes seek to resolve disagreement without help of neutral 3rd party
-2 party arrangement
-both parties desire to settle without escalation
adjudication
-public and formal
-emphasis on legal rights
-courts can intervene whether parties want it or not
-courts deal with issues and facts
mediation
-disinterested non-coercive third party
-mediator does not make final decision
-settlement worked out by disputants
-often produces more equitable outcome
arbitration
-third party makes final and binding decision
-proceedings may remain private
-reduced cost of dispute resolution when compared to court use
-alternative to administrative and judicial administrative processes
hybrid process
-“rent-a-judge” -form of arbitration where disputants select a retired judge to act as arbitrator
-med-arb- issues not solves by mediator are moved to arbitration with the same 3rd party acting in both
-minitrial- attorneys are given a short time to present their case to senior executives from both parties
lumping it
ombudsman process
-combines mediating and investigatory functions
-related to the mediation process of dispute resolution
in order for a dispute to be heard in court…
-plaintiffs must demonstrate justifiability and standing
increase in litigation
- can be explained by:
-cost benefit analysis
-complexity of law
-creation of more legally actionable rights
-ex. prisoner lawsuits
litigation
-process of taking legal action
tort litigation
-involves one shooters vs. repeat players
four types of litigants
-one shotter vs. one shotter
-repeat player vs. one shotter
-one shotter vs. repeat player
-repeat player vs. repeat player
one shotter
-only use the court system occasionally to make or defend claims
-usually private individuals
repeat player
-use the courts often
-usually business and government
disputes between individuals and organizations
-one shotter vs. repeat player
-can be a civil rights dispute
-can involve economic matters, damage claims, resolution, civil rights issues and organizational policy, rules, and procedures
litigation between individuals and organizations
-involves a creditor-debtor relationship
-when non-legal methods dont work, organizations turn to courts to get judgments, liens, or garnishment of wages
civil rights dispute
-examples could be- being denied something like housing because of race, sex
-involves individual vs. repeat player
respondeat superior
- means “let the master answer”
-a legal doctrine applicable in many civil claims
-under the doctrine an employer can be held accountable for negligence or wrongdoing committed by their employee
social change
-changes In society
-product of many factors and social mechanisms
-same factors also influence the law
aspects of law in social change
-direct and indirect
-indirect:
law plays an indirect roles and shapes various social institutions which in turn have a direct impact on society
-direct:
law interacts directly with bait social institutions resulting in a direct impact on society
technology’s influence on law
-new crimes detection techniques
-fingerprinting
-dna
-polygraphs
-alteration in social condition which may induce legal change
Law as a cause of social change
-demonstated in the post WWII legal changes that shifted the eastern-bloc countries from a bourgeois society to a socialist society
-increasingly used as an instrument of social change in issues such as education, environment, housing and transportation
-based on the perception of law as legitimate, rational, authoritative and backed by the mechanisms of enforcement and sanctions
-cant resolve all conflicts
-tends to be vague
-favours the privileged
law as a result of social change
-the civil rights movement of 1964 is a prominent example of such a movement forcing legal change
Factors that create a resistance to social change
-social, psychological, cultural, and economic forms which create a resistance to change
social factors that create a resistance to social change
-social class
-morality
-vested interests
-organized opposition
psychological factors that create a resistance to social change
-habit
-motivation
-ignorance
-selective perception
-inherent complexity of moral development
cultural factors that create a resistance to social change
-fatalism
-ethnocentrism
-notions of incompatibility
-superstition
economic factors that create a resistance to social change
-prohibitive cost
-limits on the availability of economic resources
space law
-branch of international law similar to air and maritime law
conditions for efficacy of law as mechanism of social change
-as a mechanism of social change, law entails 2 interrelated processes:
-institutionalization of patterns and behaviour
*refers to the establishment of a norm with previsions for its enforcement
-internalization of patterns of behaviour
*means the incorporation of the value or values implicit in the law
origin of law
-emerged form a diverse cultural, religious, and social history
-origin of the legal profession can be traced to ancient rome
-first legal representatives were roman orators- eventually which evolved into juris prudentes and then to practitioners of law in the imperial period
-emerged form formal law with roots in English government organization
-prerevolution- was practiced by upper class
-after revolution- lost its English system traits and became more democratized
what were the “learned professions”
-law
-the church
-medicine
the professionalization of law
5 stages of the process
-became full time occupations
-training schools established
-local professional associations started
-state licensing laws
-formal codes of ethics established
origins of law school
-emerged from apprenticeship programs in law offices
-gradual development reached a high point in 1870
-prominent group of lawyers formed a lawyers union, the bar, and began enforcing professional standards
-1870; Harvard began teaching law by the case study
current legal professions
-fastest growing off all professions in the use
-reputation among profession among citizens continues to be low
- this is also something found in many other countries as well
subgroups in legal professions
-lawyers in private practice
-majority of American lawyers in private practice
-salary, education and social status vary
-lawyers in government service
-approx 12% of usa lawyers employed by federal, municipal or county govt
-lawyers in private employment
-approx 12% employed by private companies
-often as salaried employees of business or corporation
-judiciary
-less than 10% are members of the judiciary
salaries
-vary depending on the positions, locations, and subgroup
-highest starting salaries in major cities like NYC
-lawyers in private practice generally have lower salaries
-judges even lower
public access to law/lawyers
-attorneys can provide pro bono publico
-criminal defendants have access to defence lawyers
-in civil cases the poor can access lawyers through legal aid programs
-legal aid attorney work has 5 main areas
-family
-consumer
-housing
-landlord-tenant
-welfare
current law schools
-over 200 institutions that are approved to offer degrees in law
-demographics of students has changed- now seeing more women and underrepresented minorities
-method of teaching is still case law
-socratic method of teaching forces students to think like lawyers are build arguments based on legal reasoning
-possesion of law degree does not allow one to practice law- must apply to and pass the bar first
-bar acts as an interest group affecting all matters of legal system
what period did the practice of law and formations of law schools begin?
-between the roman imperial period and late 1800s
what were the 3 functions of a lawyer in the Middle Ages?
-agent, advocate, and jurisconsult
attorney
-lawyer who has passed the bar exam and can practice law
-often not liked because they are assumed to be in it just for the money or seem to not care
-spend their time meeting clients, researching, reading, going to court, creating arguments
methods of data collection in law and sociology
-4 commonly used methods of data collection
-historical
-observational
-experimental
-survey
historical research
-critical investigation of events, developments, and experiences of the past
-origins of this must be understood for contemporary research to be understood
-date includes:
historical documents
census data
personal diaries
witness accounts
personal letters
observational research
-divided into 2 types
-methods with human or mechanical observers
-methods directly eliciting a response from subjects by questioning
-can be used in laboratory or field settings
-advantageous because of the high validity of data but is only usable in small settings
experimental research
-most prevalent method used by social scientists
-can be applied in lab or field setting
-usually includes 2 equal groups with an experimental variable put into one
-may create ethical questions regarding the use of subjects and their treatment
-legal controls placed by the government or the institution to guard the rights of participants
survey research
-focused on the collection of data about the attitudes, beliefs, and behaviours of people
-includes face to face interviews, questions, and telephone interviews
-faces challenges in the response and validity of the data collected
sociology
-can be considered a pure or applied science
-pure sociology
*concerned with the gathering of new knowledge
-applied sociology
*attempts to apply that knowledge to a practical problem
-because its both pure and applied, the role of sociologists in the legal and social systems have grown
-sociologists are involved in policy making through studies and evaluations and have a direct impact in enacted and proposed policy
in roman law, those who argued legal cases on the behalf of others studied..
rhetoric
the practice of law for a living and the formation of schools of law began in..
the imperial period
what was not a function of a lawyer in the Middle Ages
juris prudentes
the difference between the four main methods of researching law in society is…
the data collection strategy used
the best method of data collection to study a sequence of events by the participants…
observation
the best method of data collection for studying the norms, rules, and status in a particular group…
interview
