Legal Studies Final

1. how does the behavior of legal actors and their decisions affect the conditions and outcomes of life in society? (how does law affect society?)
2. How do non-legal, societal variables affect and explain the behavior of legal actors? (how does society affect law)

(1864-1920) - had a legal education but did not practice law, was a political sociologist, focused on the impact of rationalization of society on the law. his ideas come from writings on society, politices, economics, etc.

1. For an individual: Methodologocal style of life. Means-ends calculations to get to ultimate goal (get to goal in a rational and ordered fashion). We are trying to get to this goal most efficiently and cut out anythign that does not help. We base our calculations on the predicted behaviors of others (we assume others are rational actors) EX. education - we came to UMASS to get degree and good job - means go to class, read, score well on exams - all leads to good job at end. we make calculations of what will and will not help get to goal (partying?). we also assume others are rational and that values will remain stable, someone will value a degree in the future
2. For Society: Institutions governed by formal rules. applications of those rules leads to greater efficiency in pursuing the institution's goals. EX. Ford Model T was only made in black because was cheap and dries the fastest. factory asssembly line epitome of rationalization, cuts excess. capitalism is also a clear example or rationalization

Weber talks about law historically to figure out how we got ot where we are. He says legal systems have been Rational, Irrational, Formal and Substantive. he argues current society is moving towards formal rational

1. Rational - (rule-bound, systematicaly organized like 4 degrees of homicide). means for settling disputes defined by rules. Rules are arranged to form a "logically clear, internally consistent, gapless sytem". rules are general and abstract rather than mired in particular facts. decisions are "controlled by the intellect" - there is logic in way that decisions are reached - apply rules to facts and get decisions
2. Irrational - Disputes are settled arbitrarily. Multiple, different rules can govern a particular case. rules are bogged down in particulars, making them seem arbitrary. Decisions arrived at by use of magic, oracles, dice, revelation, intuition - no clear relationship between ends and means to get to the ends

1. Formal Principles: Emphasis on procedures use to arrive at decisions. Terms of contest promote equality of opportunity and access among contestants ("Formal equality"). Outcome is determined without regards to ethical, social, political or economic considerations.
2. Substantive Goals: Emphasis is on Obtaining outcomes that meet or advance ethical or political goals (those goals can be good or bad). Rules and procedures take back seat to ensuring the best outcome

Les Mis: Man stole bread to feed family. Formal view: man convicted reasonably, all procdures were followed, actions fit crime, no rights were violated. Substantive view: begin to impose values - our values believe should not punish poor man for stealing for family - system that drove him to steal more important than the fact that he stole

1. Formal Irrational = formal procedure for getting decision ex. Middle Ages - trial by ordeal - proof of guilt base on set of procedures - if hand healed after burning water not guilty - if could hold onto hot rod or walk across coals and healed were not guilty (irrational/no way to predict outcome) ex. shes a witch monty python
2. Substantive Irrational - based on criteria held by decision maker, based on personal opinion, each case treated on own, no way to predict ex. judge judy
3. Substantive Rational system = morally/ethically based application. criteria not law-oriented, but rational because if know substantive criteria can predict outcome ex. mafia justice = if betray mafia, will get killed - set of substantive norms, but know consequences
4. Formal Rationality = rules, procedure, predictable - weber's idea of "gold star"/ideal legal system. he argues over time legal system s have become more formal and more rational

1. Rise of the modern state: Need for power sharing between monarchs, elites and aristocrats. Ability to create a legal beaurocracy. power sharing in a monarchy acted as a check and balance system
2. Decline in religion, increase in secularization: Less reliance on the divine for understanding the world and everyday decision-making
3. Professionalization of the law: Need people trained to understand the rules and procedures and how to apply them. Growth of lawyers, law schools, bar associations

1. Rules become more rationalized over time through the use of law because as you use the law paradoxes get fixed, efficiency increases and clarification increases
2. Rationalization leads to more efficient administration of the law - becomes more like assembly line - cases resolved more quickly
BUT what makes it more efficient to administer is using the law less (paradox). using the law less leads to alternatives to court: plea bargain, mediation, arbitration

1. Law has two purposes: It helps order society by creating behabioral norms and precedent for future guidance AND allows for public resolution of disputes which works as a corruption check, gives people idea of behabioral norms
2. Law is becoming less and less public which undermines both of these purposes: arbitration, mediation (civil case), Plea bargaining (criminal case)

1. Less experience with law for practitioners and the public (public not getting benefit of serving on jury)
2. Non-typical cases get litigated publicly (those cases where precedent does not clearly apply), most others are settled (when precedent clearly appies)
3. Precedents are "missing" from the law
4. Law enforced inconsistently if taking place behind closed doors

Civil = anything you can't go to jail for. is a conflict between people or between corporations. The plaintiff brings a suit against the defendantneed to prove more likely than not to prove guilt. not assessing guilt and innocence is about compensation and damages. includes divorce, malpractice, personal injury cases. gives right to jury in any case that includes more than $20 - both sides can waive right to jury. can have civil cases in federal court as well but only if greater than $75th. or between parties that cross state lines. Criminal = law has been violated, so state decides to prosecute for violation. is defendant vs. prosecutor who brings case on behalf of state. need to prove beyond a reasonable doubt to prove guilt.

steadily decreasing in all sectors - state and federal

1. judges see themselves as problem solvers so encourage settlement
2. More cases and wait time, cost and uncertainty make people more likely to settle because they do not want to wait
3. Fewer practitioners have experience with trials so plaintiffs and defendants are more uncertain about the outcomes