LEGAL 397N Lecture Notes - Lecture 3: Armed Career Criminal Act, Antonin Scalia, Legal Realism

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7 Feb 2017
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Legal Studies 397N: Law & Public Policies
Professor: Dr. Douglas Rice
Part I
Courts in the Policy Process
Lecture 2/7:
Where are the Courts? Why?
o Juridification: Make policy change by going to the courts as a referee of sorts
“Advocates on the right and the left are asking the courts to referee the
country's biggest social attles and reverse old rulings”
Ex.) Muslim Ban, Immigration Detentions, etc.
o Why don’t judges change their minds?
They are supposed to appear as distance, neutral, and wise
Supreme Court, other Judges → serious looking, superior (elevate
them above anyone else in the room), stand for them upon their
entrance, they wear robes
o Higher degree of respect
Law dictates our individual lives
Policies are made to help people’s daily lives
o Ex.) Brown v. Board, Planned Parenthood v. Casey, etc.
Legal Formalism vs. Legal Realism
o All judges do things from the book/drive from the law in an unbiased
way/Uncontroversial vs. Gray area/What Judges actually do instead of what they
say they’re doing
Ex.) Scalia thinks of himself as a Formalist vs Posner deals with Realism
In regards to Voter ID laws, there was a reduced turnout for
African Americans and young voters
o Formalist → State law matter
o Realism → Maybe Voter ID laws are unconstitutional if its
going against a certain group
Deciding: Modes of Interpretation → Statutory vs. Constitutional
o Precedent
Reasoning by example
Treatment of Precedent
Distinguishing
o Looking at precedents, see the facts of the case, how the
case was decided, the controls and what matters
Problems? Dimension of differences between all
cases distinguishes them
Limiting
o Upholding fundamental holding, the right to abortion, ___,
____, etc.
Ignoring
o Ignore tests amongst other things → Justices may not like it
o Not overruling, just not dealing with it
Overruling
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