Critical Legal Studies

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Transcript Critical Legal Studies

Challenging the Law
Unit 9
Stare Decisis
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“Following precedent.”
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It is important for precedent to be followed
because the stability of society requires that
the law not change too rapidly.
Legal Realism
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Judges arrive at decisions using personal,
moral and political considerations.
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The law fails to yield determinate decisions in
cases.
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Law students need to take a less idealistic
view of the law.
Legal Realism
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The Legal Realists felt that the law should be
flexible to promote the good of society.
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Society was evolving and new legal rules are
required in order for progress to continue.
Legal Realism
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Sources of law are not self interpreting.
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For matters on appeal there are no legal
materials at hand to help reach a decision.
Critical Legal Studies
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Critical legal studies (CLS) is a theory that
challenges and overturns accepted norms
and standards in legal theory and practice.
Critical Legal Studies
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Proponents of this theory called “Crits”
believe that logic and structure attributed to
the law grow out of the power relationships of
the society.
Critical Legal Studies
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The law exists to support the interests of the
party or class that forms it and is merely a
collection of beliefs and prejudices that
legitimize the injustices of society.
Critical Legal Studies
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The wealthy and the powerful use the law as
an instrument for oppression in order to
maintain their place in hierarchy.
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Bosses/workers, judges/litigants,
adults/children,
whites/nonwhites/men/women.
Critical Legal Studies
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The basic idea of CLS is that the law is
politics and it is not neutral or value free.
CLS is also a membership organization that
seeks to advance its own cause and that of
its members.
History of CLS
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CLS was officially started in 1977 at the
conference at the University of WisconsinMadison, but its roots extend back to 1960
when many of its founding members
participated in social activism surrounding
the Civil Rights movement and the Vietnam
War.
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
CLS Includes Several
Subgroups
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Marxism
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Legal Feminists
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Critical Race Theorists
Marxism
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The history of political and social life is a
history of class struggle.
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The economically dominant class has power
of the subordinate class.
Marxism
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One class dominating the other will be reflected in
the law.
Those in economic power often have control over
making and applying the law.
Lawmakers and judges are drawn from the elite
class.
The legal order is unable to sustain norms too
contrary to the prevailing economic relationships.
Marxism
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The economic class one belongs to will
determine the concept of morality and values
that one adopts.
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Laws that appear neutral and impartial on
their face really aren’t.
Feminist Legal Theory
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Catharine A. MacKinnon is a leading figure in
radical feminist criticism (sometimes called
fem-crit).
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
Feminist Legal Theory
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Throughout her career, MacKinnon has
attempted to show the ways in which the
established legal system reflects the sexism
of the society that created it.
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
Feminist Legal Theory
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"The law," MacKinnon wrote, "sees and
treats women the way men see and treat
women."
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
Critical Race Theory
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Critical race theorists share a number of
themes. Like CLS, CRT finds major faults in
liberalism and particular features of liberal
jurisprudence that bear on race, including
affirmative action, neutrality, and "color
blindness."
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
Critical Race Theory
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Many CRT writers, for example, dispute that
the Constitution is or ever can be "colorblind." They also assert that supposed
breakthroughs in the area of racial rights by
the Supreme Court serve only to validate an
unjust political system by creating the illusion
that racial inequalities are being ended when
in fact they are not.
Source: http://topics.law.cornell.edu/wex/Critical_legal_theory
Law as Politics
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First among the basic ideas that CLS
scholars tend to share is the notion that law
is politics—in other words, that law and
politics are indistinguishable from one
another.
Legal Reasoning
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According to the crits, there is no
subcategory of practical reasoning called
“legal reasoning.”
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The kind of practical reasoning judges and
lawyers do is no different from the kind
anyone does when making a moral or
political decision.
Legal Reasoning
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The legal system, according to CLS,
supports the status quo, perpetuating the
established power relations of society.
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The law does have logic and structure, but
these grow out of the power relationships of
society.
Legal Reasoning
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CLS therefore sees the law as a collection of
beliefs and prejudices that covers the
injustices of society with a mask of
legitimacy.
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Law is an instrument for oppression used by
the wealthy and the powerful to maintain
their place in the hierarchy.
The Law
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CLS theorists also share the related view that
the law is indeterminate. They have shown
that using standard legal arguments, it is
possible to reach sharply contrasting
conclusions in individual cases.
The Law
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The conclusions reached in any case will
have more to do with the social context in
which they are argued and decided than with
any overarching scheme of legal reasoning.
Final Paper
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Listen to (or read) the speeches by Martin Luther King and George Wallace
concerning the issue of segregation and analyze the transcript of those
speeches. Identify views of philosophers or philosophical theories discussed
during the term that relate to these speeches.
A speech by Dr. Martin Luther King, Jr., delivered 28 August 1963, at the
Lincoln Memorial, Washington D.C
Governor George Wallace’s January 14, 1963 inaugural address
Analyze the statements of each speaker. What does each statement imply
regarding their views on the following legal philosophical issues:
(a) the legitimacy of positive law versus natural law
(b) a subject’s duty to obey the law
(c) how law should or should not be used to promote the common good
(d) Harm to others principle as justification for his views
(e) the roles paternalism and autonomy should play in determining the aims of
law
(f) the role morality should play in determining the aims of law
Final Paper
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Identify the statements in the speech that support your position. Justify your
arguments by referencing the views of philosophers or philosophical theories
discussed during the term. Supplement your discussion with material from two
sources other than the textbook. If you perform the assignment completely,
you will have 12 arguments total, six for each speaker.
Your paper should be at least 1500 words in length, exclusive of references.
In addition to fulfilling the specifics of the assignment, a successful paper must
also meet the following criteria:
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Length of each summary should be at least 1500 words excluding cover page and
references.
Viewpoint and purpose should be clearly established and sustained.
Assignment should follow the conventions of Standard American English (correct
grammar, punctuation, etc.).
Writing should be well ordered, logical and unified, as well as original and
insightful.
Your work should display superior content, organization, style, and mechanics.
Appropriate citation style should be followed.