CJL 3038 Lecture Notes - Lecture 2: Feminist Legal Theory, Critical Legal Studies, Equal Protection Clause
22 May 2018
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Course
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CJL3038 Exam 2
Unit One, Lecture 2
• Critical Legal Studies Movement
- Argued against the belief that the rule of law is supreme
- Nothing distinctly legal about legal reasoning
- Outcome largely dependent on the judge
- Indeterminacy: The inability of law to cover all situations
- Law is far from a science, law only seems neutral
- Laws legitimize status quo- they are a part of the system of power in a society rather than a
protection against it
• Critiques of the CLS Movement
- Utopian ideals, hostile to rules
- Teaches cynicism
- Succeeded in critiquing the Western legal system
- Has not successfully explained what other theories may account for
• Feminist Legal Theory
- Analyzing the relationship between law and gender: draws from the experiences of women
- Developed against the backdrop of mass political movements
- Society viewed as patriarchal, organized and dominated by men, and not hospitable to
women
- Themes in Feminist Legal Literature
1) Struggle for equality: men have structured society to maintain their power
2) Precedents tend to reinforce status quo: which is that men dominate society
3) Law is reflection of male culture, problems faced by women are trivialized(sexual
harassment)
- Feminist Methods
1) Askig the oa uestio – designed to probe into the gender implications of the
social practice or rule
2) Feminist Practical Reasoning – assumes that women approach the reasoning process
differently than men, challenges legitimacy of laws that claim to speak on behalf of
community
3) Consciousness Raising – tests the validity of legal principles through the experiences of
those who are affected by those principles – attempts to alter public perception
- Responses to Feminist Legal Theory
1) Critical studies of masculinity
2) Men are as oppressed within patriarchy (male vs. female roles)
• Critiques of Feminist Legal Theory
- Over simplistic – does not account for the complexity of social interaction
- Limits inequalities to gender relationships
- No consensus in the literature about particular issues
find more resources at oneclass.com
find more resources at oneclass.com
• Critical Race Theory
- Minorities are oppressed and being oppressed creates fundamental disadvantages for those
who are treated
- Focuses on experiences of minorities
- Concerned with questions of discrimination, oppression, difference, equality, lack of
diversity
- Racism – not only as individual prejudice, but also deeply embedded in language and
perception
- Unconscious racism – often ignored by legal system
• Young Intellectual Movement – methods not fully developed, has potential to have a profound
effect, but needs more research
• Consensus in these theories is that legal and societal complexities have gone hand in hand
Unit 2, Lecture 1
• Conflict resolution is best achieved through an adversary process
• Relies on the skill of the different advocates representing the parties positions and not on a
neutral party
• Adversary System Assumes 3 things:
1) Those who the dispute affects should be responsible for making their arguments
2) Biases of self-interest: necessary motivators and offset by placing the dialogue in a
courtroom(a neutral place, with neutral supervision)
3) Conflict can take place within our system of law
• Adversarial Systems(Common Law Countries) – US, Canada, UK
- Each side presents its best evidence and an independent fact-finder decides the outcome
- Judges ensure due process and decide what evidence to admit
• Inquisitorial Approach(Civil Law Countries) – France, Germany, Spain
- Judges asks the questions of the witnesses(testify for the court) and makes a decision
• Adversarial System
- Values – fundamental fairness, competitive advocacy, individual rights
- Role of Attorneys – active, responsible for producing evidence and questioning witnesses,
prosecutors and defense are more partisan, competitors
- Role of Judges – passive, like umpires or referees(not responsible for investigating truth)
- Roles of Parties/Witnesses – more party control, less intervention, more oral testimony,
short Q&A
- Rules of Evidence – stricter, more complex. More exclusionary rules to control police,
prosecutors, and judges. Presented to laypersons
- Rights of the Accused – more due process rights, right to remain silent(not able to question
accused), more privacy rights, protect society by protecting individual from too much
governmental interference, presumption of innocence, confessions end investigation
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Unit one, lecture 2: critical legal studies movement. Argued against the belief that the rule of law is supreme. Indeterminacy: the inability of law to cover all situations. Law is far from a science, law only seems neutral. Laws legitimize status quo- they are a part of the system of power in a society rather than a protection against it: critiques of the cls movement. Has not successfully explained what other theories may account for: feminist legal theory. Analyzing the relationship between law and gender: draws from the experiences of women. Developed against the backdrop of mass political movements. Society viewed as patriarchal, organized and dominated by men, and not hospitable to women. Responses to feminist legal theory: critical studies of masculinity, men are as oppressed within patriarchy (male vs. female roles, critiques of feminist legal theory. Over simplistic does not account for the complexity of social interaction. No consensus in the literature about particular issues: critical race theory.
