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| The rationalistic model of lawmaking |
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Definition
| Laws are designed as rational responces to situations in society that are harmful to people in society. (Crime is harmful to society. Society responds by trying to deter criminals by setting laws. |
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| The functionalist model of lawmaking |
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Close resemblence to hoebel. Toward centralization of power. Tries to eliminate conflict.
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| Substantively irrational law |
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Definition
| "Khadi justice" (Khadi-muslim judge who sits in market and decides cases between merchants) look at each case and decide based on gut. Looks at religious, ethical, and political reasoning. |
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| The conflict perspective on lawmaking |
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| Regards social and economic inequality as determining the law. The wealthy pass laws that will serve their interest. Their interests generally do not coincide with the interests of society. |
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| Has a legal code (internally harmonious body of principles) which are general and clear and predictably apply to all general cases. |
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| Moral entrepreneur theory of lawmaking |
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Definition
Argued that if you want to understand how law developed, you need to understand that:
- Law is a product of social entrepreneurship.
- Don't have to be social elite to be moral entrepreneur.
- Marijuana tax act of 1937
- Narcotics bureau emerges as a social entrepreneur --Passes the narcotics act --head of the bureau Henry Anslinger hired by Mellin. Mellin was worried the sale of hemp would compete with dupont family chemical. Anslinger worked on behalf of Mellin to defend the interests of the Dupont family business. Symbolic crusade by Joseph Gusfield
- MASS is an example of moral entrepreneurship
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| Marijuana Tax act of 1937 |
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Placed tax on the Sale of Marijuana
- Related to Moral entrepreneur theory of lawmaking
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| Looks at each case and decides based on gut. |
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| The head of the bureau of prohibition and narcotics, he was hired by Andrew Mellon to defend the Dupont family business. |
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| Hierarchy in Law schools (Kennedy) (curriculum) |
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Definition
There is a hierarchy in curriculum and among students.
1st year- legal reasoning (principles from assumed realities, ie capitalism, laissez faire)
2nd year- Reform programs (new deal, more regulatory regulations) |
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| Hierarchy in law schools (Kennedy) (students) |
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Definition
| Wealthy students go to wealthy schools, those most successful at these schools are at the top of the hierarchy. Students defer to those above them in the hierarchy and treat those below them poorly. Those who serve big corporations are praised, Kennedy thought you should help the poor. |
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| Wrote "symbolic crusade" about prohibition act. |
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Americans put faith in law
ie. to stop drinking problems |
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| Hired Anslinger. Worried that the sale of Hemp would compete with Dupont family chemical. Worked with Anslinger to help defend Dupont. |
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| American adversarial system of law is an example. Lawyers do not care about the truth in the case, only that they earn the "victory". |
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| Truth theory of Lawmaking |
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Definition
| Lawyers attempt to uncover the truth and present it in a court of law. |
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| Made by legistlature. Judges interpret the law. |
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| Court must interpret law and sets precisdents |
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| Primitive rebellion thesis |
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| Some crime is a form of revolt. Workers understand that they are being oppressed and taken advantage of by the bourgeois. When working class commit crimes, it is a form of protest, not a way of making a living. |
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| 3 types of judicial lawmaking |
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Definition
1. Precedent (stare decisis)
2. Interpretation of statutes (pre existing laws)
3. Interpreting the constitution |
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| Lumpen Proletariat thesis |
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Definition
| In modern capitalism when the market slows it throws workers into poverty. Must find an alternate way to survive, so they resort to crime. It is a term coined by Marx to describe the layer of the working class that is unikely to ever achieve class consciousness. Literally means rag. |
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| The creation of laws/legal code. |
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| Changes in material conditions are the primary influence on how society and the economy are organized. It looks for the cause of developments and changes in human society and the means by which humans collectively produce the necessities of life. First articulated by Karl Marx. |
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Court rulings where judges base decisions on prior, similar cases.
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| Social theory that states that a particular political or economic system is a fair system, and that social change should take place within the social institutions provided by it. Consensus theory sharply contrasts with conflict theory, which states that social change is only achieved through conflict. |
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| Collection of federal and state government laws that regulate the organization of corporations. Generally used to promote competition for the benefit of customers. |
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| A landmark statute passed by congress in 1890. Prohibits anticompetitive business practices and requires that the federal government investigate and pursue trusts, companies, and organizations suspected of being in violation. |
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| Was added to give further substance to the US antitrust laws. It sought to to end anticompetitive practices in their incipiency. It also specified prohibited conduct and created the three level enforcement scheme and expemptions and remedial measures. |
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| Federal Trade commision act |
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Definition
| Established the FTC, a bipartisan body of five members appointed by the president for 7 year terms. authorized to issue cease and desist orders to large corporations. |
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| Founder of sociology. Explored the impact of massive change on society. |
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Term
| Influences on legislative process |
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Definition
Interest groups- groups pushing forward laws, offer a voting constituency to the law maker, or threaten politicians if they don't pass a law.
Public opinions- 1. Direct influences. 2. Special constituency 3. Indirect influences.
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| Set of shared beliefs, ideas, and moral attitudes which operate as a unifying force within society. (Durkheim) |
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3 Types of public influence on legistlation
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Definition
1. Direct influences-small groups of people or individual members of the public that can weigh in and offer a reward or some sort of retaliation.
2. Special constituency influences-more organized type of groups (political parties and interest groups)
3. Indirect influences- legistlator and the members of the public have a common interest. |
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Term
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Definition
The black death, resulting from the
Yersinia pestis bacterium was responsible for the death of 75- 200 million people. It peaked in Europe between 1348-50.
This was also the time when vagrancy laws began to arrise. A large portion of the work force was wiped out.
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| Vagrancy statutes 1349-1743 |
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Definition
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The number of displaced people charged with crimes continued to increase. This was because the numbers of the rabble but also the likelihood of being charged with a crime continued to increase over the next few centuries, to stop their incursions on private property, and when shortages of labor existed, to assign them to low paid productive work. The vagrancy laws passed between 1349 and 1743 were intended for this purpose. |
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