POLSCI FINAL

Question 1

LEGAL FORMALISM

Answer 1

the widespread belief that law constitutes a collection of
rules, issued from a lawmaker, which are widely obeyed by citizens or subjects (JUDGES = REFS, NOT POLICY MAKERS)

Question 2

HAMILTON

Answer 2

Judiciary has no force or will, only judgement; least dangerous branch;

Question 3

LIBERALISM

Answer 3

everyone was to be treated equally
under the law, including lawmakers themselves, who were to issue laws while themselves being
checked by the division of powers and obedience to constitutional norms; In principle at least no one was supposed to be “above” the law-including the sovereign
lawmakers themselves

Question 4

DWORKIN

Answer 4

• Liberal
• offers the most sustained defense of the Warren
  Court from a liberal perspective
• Defended the importance of Judges who advanced liberal decisions, while arguing this was
  not activism per se since they were giving the most objectively right interpretation of the law’s
  guiding principles
• “Taking Rights Seriously” 1977
• Thought highly of judges integrity
• “One right answer” to legal questions

CRITIQUES:
- unrealistic, biased
- courts didn’t end segregation

Question 5

CHEMERINSKY

Answer 5

“Presumed Guilty”
-Draconian nature of American criminal justice policy

Question 6

WARREN COURT

Answer 6

The Warren Court is largely seen to have operated between 1953-1969 (and perhaps slightly
beyond) and issued a large number of liberal decisions on issues ranging from race to contraception to prisoners rights
The most notable of these are of course Brown v Board of Topeka and Miranda v Arizona in
1966

Question 7

PRINCIPLES VS POLICY

Answer 7

Dworkin Argument!!
- Policy = used by legislature, cost-benefit analysis for best decisions, no argument of principles
- Principles = used by judges, basic standards governing a
society which are to be applied to everyone without prejudice

Question 8

TAKING RIGHTS SERIOUSLY

Answer 8

• Dworkin
• Argues that the rights in the US constitution are
  intended as “trumps” which inhibit what a majority may do to any citizen
• policy can be deliberated upon, but rights are protected as a matter of principle
• Democracy is a partnership of equals

Question 9

BROWN V BOARD OF TOPEKA

Answer 9

the SCOTUS overturned 60 years of precedent and rejected
the strict “original” intention of the drafters of the 14th Amendment to argue that a more
principled understanding of equality required racial integration…insisting that segregation is inherently unequal
since it is intended to stamp millions with the badge of inferiority

Question 10

PLESSY V FERGUSON

Answer 10

PRE-BROWN: SCOTUS had ruled that “equal protection”
wasn’t incompatible with the idea of “separate but equal”

In 1890 the state of Louisiana passed a restrictive law requiring whites and blacks to sit in separate railway cars
Homer Plessy, a civil rights activist, deliberately challenged the law by purchasing a first class ticket and sitting in the whites only area

Question 11

SILENT MAJORITY

Answer 11

Nixon tactic that presented the conservative movement less as a
victimized band of outsiders and more as speaking for what he later called a “silent majority”
of Americans who were discontented with the changes taking place
(law & order)

Question 12

CONSERVATIVE LEGAL MOVEMENT

Answer 12

1950s onward: Nixon-Ford and Reagan administrations pushed for “Strict Constitutionalism”, claiming the need for a more “neutral” judiciary not biased in liberals favor

Question 13

STRICT CONSTITUTIONALISM

Answer 13

Nixon et al’s references to “strict” constitutionalism were mainly rhetorical devices
intended to convey that Justice Warren and the liberal court were not interpreting the law but
making policy

Question 14

ORIGINALISM

Answer 14

Originalists hold that Judges should not apply their own moral or political judgements when interpreting the law, but instead interpret it according to the “original meaning” of the law when it was enacted; Judges are not supposed to make policy decisions for the American people directly, but instead simply adjudicate whether a given policy or law
aligns with the text of the constitution or not; If it does not align with the text of the constitution a policy or law cannot stand

Question 15

INTENTIONALISM

Answer 15

JUSTICE ROBERT BORK
Bork argued that rather that the goal of a judge should be to interpret a text according to it original meaning, which could be found in the “intentions” of the lawmakers
This was especially important when interpreting the Constitution, and Bork held Judges needed to be especially respectful of the intentions of the founders

Question 16

TEXTUALISM

Answer 16

JUSTICE ANTONIN SCALIA
the “original meaning” of the law lay in the text itself. A Judge was to read the
language of the law to coincide with the plain meaning it would have had at the time of its
enactment; This meant not interpreting the language in a way acceptable to modern people, but instead
drawing on sources like history or even dictionaries to ascertain what “arms” or “equality” would have meant in the 18th and 19th centuries
“DEAD, DEAD DOC”

Question 17

LEGAL REALISM

Answer 17

For legal realists the formalist had largely misunderstood the nature of law, and consequently
what it was that judges and legal officials do
For realists, Judges are more like senior government officials tasked with resolving a wide range of social problems. To do so they very much need to engage in the kind of consequentialist reasoning Dworkin and Scalia would reject in unison

Question 18

PRAGMATISM

Answer 18

the idea that “truth” was less a matter of accurately
explaining reality and more different ways of describing it that happened to be useful to fulfilling human objectives

Question 19

O.W. HOLMES

Answer 19

REALISM
In The Common Law Holmes rejects the idea that law can be conceived as a “deductive”
science, where there are a few simple rules whose application flows logically from their
axioms; Instead law was eminently created to serve human purposes, and is stamped by the
experiences of a given society over its history and development; One can see this in particular throughout the common law, which consists of Judges making
decisions and setting precedents largely motivated by their sense of what was important, acceptable, or required at any given time

Question 20

THE PATH OF LAW

Answer 20

At the end of the day what really motivates a Judge to make the decision they do is an eyes to consequences.
They make a judgement based upon what they think will produce the most good for society, and then effectively encase this consequentialist judgement in language that sounds objective and axiomatic even though it isn’t in fact

Being an effective legal actor means having a good sense of how Judges think as
individuals, and what kinds of social outcomes they believe it is important to promote. This will of course be different depending on the Judge, which shows how little law has to do
with strict objectivity

Judges should be educated on social science!

Question 21

LOCHNER V NY

Answer 21

In 1899 a German baker was charged with violating New York’s Bakeshop Act of 1895,
which imposed limits on the working day for bakers
Was intended to incentivize bakeries to pay living wages to workers while not compelling them to work for long hours. Lochner argued this violated rights to freedom of contract under
due process law guaranteed by the Fifth and Fourteenth Amendment

In a 5-4 decision a majority on the Supreme Court ruled in favor of Mr. Lochner, and
removed restrictions on the length of the working day
O.W Holmes memorably dissented

Question 22

BUCK V BELL

Answer 22

In September 1924 Dr. Albert Priddy filed a petition to sterilize Carrie Buck, an 18 year old woman whom he claimed had the mental intelligence of a 9 year old. Later taken up by the
new superintendent John Bell

Upheld Virginia’s forced sterilization laws, which had been implemented to try and inhibit reproduction by undesirable groups for eugenic purposes; Holmes observed that Carrie Buck came from a long line of unintelligent family members, many of whom had struggled to become productive members of society; Held that it was in the interest of society to inhibit such individuals from breeding, even if that
entailed violating their rights to bodily autonomy

Question 23

ROBERTS COURT

Answer 23

2005-ONWARD
Appointed by Bush, oversaw a series of transformative conservative decisions

Question 24

KIMBERLE CRENSHAW

Answer 24

track-race thory: 200 yeards difference in starting points

Question 25

DREDD SCOTT

Answer 25

held that since Dredd
Scott was not an American citizen he was not entitled to the protections afforded by the US constitution.
Because he was not a US citizen, he was also not capable of becoming a citizen of any US state and so capable of claiming the protections and privileges aligned with that. On the contrary, Taney stressed that a close look at the original intentions of the Framers showed they intended people of color to be reduced to a condition of perennial servitude

Question 26

ROSENBERG

Answer 26

• Critical of the championing of the Warren Court…didn’t do much
• dynamic v constrained court

Question 27

DANIELLE ALLEN

Answer 27

Seeks to understand the emotional attachment people had to segregation
- desegregation was fundamentally threatening since it troubled their feelings of superiority and status on which the stability of Southern society
depended
- Took on an intimate quality since this concerned the education of children, with whom parents share a deep emotional investment

Question 28

ELIZABETH ECKFORD

Answer 28

Eckford was a young black girl entering a forcibly desegregated school and was harassed by Bryan and others

At school Eckford was constantly harassed and threatened, often leading her to question whether segregation was in fact worth it given the stress and danger it posed to herself and
other black students

Allen points out that it was the bravery and sacrifices endured by students like Eckford, as well as the white teachers who agreed to each her at considerable risk to themselves, that ultimately eroded support for segregation

This is because sacrifice demonstrates a willingness to do give up for one another which is vital to the feelings of friendship essential to the formation of a democratic community

Question 29

Regents of the University of California v Bakke

Answer 29

Allan Bakke was a white applicant to UC Irvine who by all metrics was considered well qualified for medical school, but had been rejected at several because he was over the typical age of students at 33

After being rejected by UC Irvine twice Bakke sued, arguing that both his 14 th Amendment protections and Title VI Civil Rights protections had been violated

owell held that the 14th Amendment had clearly been intended to protect all individuals against discrimination, not just racialized groups. This included white men like Bakke…did argue that the goal of having a racially diverse student body may be a compelling interest. Also held that less obviously discriminatory policies than setaside, might
be constitutional

Question 30

Grutter v Bollinger

Answer 30

Barbara Grutter had applied to the University of Michigan’s law school and was rejected
despite a 3.8 GPA and high LSAT score

At the time the University of Michigan law school did not set aside seats for minority
candidates, but did take it into account when reviewing applicants

This was because the University had an interest in maintaining a “critical mass” of minority students, which would ensure other minority students didn’t feel isolated and to engender the
kinds of diversity which provide educational benefits

n a 5/4 decision Justice Sandra Day O’Connor argued that the University of Michigan’s program was constitutional
This was because the University did have a compelling interest in maintaining a diverse
student body and that the means of achieving this were sufficiently narrow to avoid being discriminatory
In part this was because there weren’t spots reserved for students on the basis of race; it was simply taken into account when making a decision on whether to accept an applicant

None the less Justice O’Connor argued that affirmative action programs like the University of
Michigan’s had to end at some point, and gave the timeline as about 25 years

Question 31

Students for Fair Admissions v Harvard

Answer 31

n a 62 decision written by Chief Justice Roberts, the Court struck down the Grutter and Bakke precedents by holding that there could never be a compelling interest in taking race into account for student admissions

Also held that the means used to try and achieve racial equality had a nebulous relationship
to the stated goals of achieving a more diverse student body

However, the majority did hold that universities could take into account a student’s own discussion in a statement on how race impacted their character, journey etc.

Question 32

RETRIBUTION

Answer 32

Retributive arguments hold that the role of punishment is to pay someone back for
committing an offense-to in effect give them what they “deserve” through the infliction of pain
or suffering proportionate the pain and suffering their crime produced
Has deep roots in the Tallionic principle of Hammurabi-the founder of the world’s first legal
system-which holds “an eye for an eye, a tooth for a tooth”

Question 33

DETERRENCE

Answer 33

These authors argued that retributive punishment was wasteful and besides the point, since
its only function was to gratify an irrational desire for revenge no mater the negative
consequences or possibility of harming the innocent
Instead they put forward the idea that the only rational basis for a right to punish criminals
was deterrence
That is, punishments provide a negative incentive for people to not commit crimes since they
face potential reprisals for doing so

Question 34

REHABILITATION

Answer 34

Finally, there are those who argue that punishment should not really be about punishment at
all in the sense of inflicting harm onto someone
Instead society is entitled to incarcerate individuals to protect itself from harm and to deter
crime from happening
But once a person is incarcerated the goal should be to “rehabilitate” them into becoming a
functioning member of society
Sentencing should focus very heavily on what is “good” for the criminal, but helping them
develop skills and abilities and offering care to enable them to move on from anti-social
behaviors