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Final Exam

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SOCI 135
Hocin Fetni

SOCI 135 Final Review Vago Chapter 3: The Organization of Law Courts • Dispute Categories o 1. Private vs. 2. Public-Initiated Dispute  Absence of the initial participation of public authorities vs. government enforcing conduct o 3. Public defendant dispute = government participates as a defendant • Organization of Courts o Hierarchies – look at notes o 51 court systems in the US • Participants in Court Processes o Litigants – disputants  One shotters  Repeat players – how frequently they go to court. Public interest lawyers, private interest lawyers, criminal defense lawyers, and client-oriented attorneys o Lawyers o Judges  Backgrounds and values affect their decisions o Juries – predominant in common law countries. Distrust of officials, which has been with us since colonial times. Used in trial courts only. Lawyers rely on their private judgments of how jurists are biased.  Scientific Jury Selection – 3 steps:  1. Random sample drawn from the population – demographic profile is compared. To represent population at large  2. Random sample drawn from jury pool to determine demographic, personal, and attitudinal characteristics considered to be favorable to one’s own side  3. Social scientists make selection recommendation for individual jurors  A bit of a flawed process. Racial considerations, professional, concerns about jurors’ ability to comprehend judge’s instructions, etc. • Flow of Litigation o Criminal: Bail, litigation – initial i.d. of suspect (problems: memory decays over time, humans are just bad at identifying during crises, way in which information is recalled reduces the accuracy of eyewitness testimony), Plea Bargaining • Civil Proceedings o If settlement can’t be reached, case goes to trial. Very small portion of cases end up in trial. Legislature • Functions – principal is law-making o Conflict Management Functions o Integrative functions – provide support for judicial and executive, oversee bureaucratic activities • Organization o House of Representatives, Senate • Participants in Legislative Process o Legislators – not representative of the population at large. Much more educated. Lawyers as well as business people o The Executive – 3 main functions for president and governors. 1. Source of ideas, 2. catalytic agents, 3. instruments the law.  Makes a lot of recommendations that get on legislative agenda  Structure groups through interest groups, party leaders, other political activists o Lobbyists – Organizations and groups that attempt to influence political decisions that have an impact on their members or their goals = interest groups  Distinct bias in favoring upper class and business interests  Self-serving  Plays a lot of roles: contact person – makes relationships and visits people. Campaign organizer – gather popular support for his/her interest. Informant – conveys info to legislator without necessarily advocating a particular position. Watchdog = scrutinizes legislative calendars and activity.  Lobbying efforts can actually lead to some significant impact – negative as well as positive  Different types of activities – educational work, influencing electoral process, specific legislation, establishment of general philosophy • Administrative Agencies – sometimes called 4 branch of government o Organization: authorities of the gov other than the judiciary, executive, or legislature. Derive their powers from Congress. Subject to pressure from interest groups and other policymakers.  Sometimes considered uncontrollable monsters that threaten civil liberties. Some contradict and depict them as extremely inefficient bureaucracies. Endemic distrust of regulatory agencies in the US o The Administrative Process  Investigation, rulemaking, enforcement, and adjudication. Combination of functions.  Investigation: fact finding. Require reports from businesses, conduct inspections, etc.  Rulemaking: formulation of policy or interpretation  Adjudication: concerns over the vested judicial power in AA. • Law Enforcement Agencies o Unambiguous feeling towards police in the US. No unified law enforcement. Effectiveness depends on organization o 5 types of public enforcement in the US: 1) police agencies of federal gov 2) State police forces and criminal investigation agencies of the 50 states 3) Sheriffs 4) Police of cities and towns, 5) Police of villages, boroughs o Some have law enforcement powers – FBI, Secret Service, DEA, Postal inspection, IRS, Customs, etc o Private police – corporations have their own police o Organization of Law  Watchman style = emphasizes responsibility for maintaining public order  Legalistic style = opposite of watchman. Tend to treat ALL situations as if serious infractions of law  Service style = Combines law enforcement and maintenance of order. Emphasis placed on community relations. o Police Discretion - can exercise this in specific situations. Thin line between discretion and discrimination in law enforcement. o Can be proactive and reactive. Vago Chapter 4: Lawmaking Sociological theories of them – how laws are formed, sociological factors that play a role in lawmaking, etc. Roles of vested interests, public opinion, and social science in decision-making process Perspectives on Lawmaking • Rationalistic Model o Laws (especially criminal) are created as rational means of protecting the members of society from social harm. Crimes are socially injurious. • Functionalist View: o Concerned with how laws emerge. Laws are like a reinstitutionalized custom. The restatement of some customs (economic transactions, contractual relations, property rights in marriage) so they can be enforced by legal institutions. Laws are passed because they represent the voice of the people. Crystallization of norms. • Conflict Model o Value dissensus, unequal access to economic goods, and social structural cleavages = basic determinants of laws. Traced to emergence of elite class. • Moral Entrepreneur Theory o Attributes precipitation of key events for presence of an enterprising group. The code of Right and Wrong. E.g., with birth control… • None of these theories can account for creation of all laws. All at least partially correct. Legislation • Make laws – judge-made laws stem from decision of actual controversies. They are not principally supposed to make laws. Provides no rule in advance for decision of cases, but waits for disputes to be brought before the court for decision. • Vs. Legislator = formulate rules in anticipation of cases. Have more freedom and innovation that the courts do. • Represents a response to some kind of problem – one acute enough to intrude on the well being of a large number of individuals. Can also be generated by apprehension, social unrest, conflict, environmental deterioration, and technological innovation. • Probability of law creation increases when 1. Powerful interest groups mobilize their members to seek action 2. Unorganized public becomes intensely concerned with an issue 3. No pressure to maintain the status quo or opposition to the proposed legislation • Premaking law stages: instigation and publicizing, information gathering, formulation, interests-aggregation (obtaining support from other lawmakers through compromises), mobilization (exertion of pressures on those able to take effective action to secure enactment), modification o Reflect norms that govern legislative process, e.g., try to appeal to a diverse sector of people. Very political process. Administrative Lawmaking • Rulemaking: • Adjudication of cases and controversies arising through their jurisdiction. • Rulemaking: single most important function carried out by a government agency • Establishment of prospective rules • Flexibility in rule-making procedures > adjudication procedures • Adjudication: • Also create rules through this. Process by which administrative agency issues an order • Applies to only a specific, limited number of parties. Have a retroactive effect rather than prospective • Stare Decisis need not prevail • Doesn’t have to wait passively for case to come before it like a court. Can choose cases in a way that it finds favorable Judicial Lawmaking • Increase in it in the US. Many legislators and administrators willing to let judges take heat for controversial actions. • All social and political issues sooner or later become judicial, it is thought. • Have become more active = imperial judiciary. Potentially pose a threat to vitality of the political system? Rather than leave controversial problems to political systems, they take them on? Nonelective judiciary = not reflective of national thought. • Has ruled on matters of welfare, prison, health administration, education, employment policy, etc. Romantic Judges = follow their passions and use due process to justify making a law rather than interpreting it. • Bold, creative, compassionate, results oriented judges instead of relying on precedent, reading the Constitution th • Classic examples = Brown vs. Board - interracial relations, Gideon vs. Wainwright, Miranda vs. Arizona – 5 , etc. • Judicial activism – raising questions about policy-making role of judges in US • 3 types of lawmaking by judiciary: o Precedent: stare decisis. Case law dominates. Common law system. Accumulated wisdom from before. Predictability and continuity. Sometimes formulations are revised. o Interpretation of Statutes: determine effects of legislative decisions. Decrees many times not enforced until interpreted by the courts. Intent of courts sometimes ambiguous. o Interpretation of Constitutions: controversial statutes or executive actions are challenged under constitutionality. Arise more in federal courts because constitution is more ambiguous. State constitutions are usually more detailed. Judicial Lawmaking usually directed at other government agencies rather than individuals Influencing in the lawmaking process • Interest Groups: image of society reflected by this view stresses cultural differences, value clashes, inequities, and social conflict • E.g., law governing use of alcohol, sexual conduct, abortion bills, antitrust laws, etc. = all in i.h. activity • Judges = not immune to them, but generally not lobbied like legislators or administrators • Techniques used = bring conflict to court’s attention by initiating test cases, communicate with them, relevant information, publish decisions in legal periodicals • Ability to influence related to financial and information resources, offensive or defensive position, and status of group is eyes of lawmakers. • Public Opinion • Less direct correspondence between public opinion and law in more complex, heterogeneous society. Timing of the relationship = at what point does the public opinion get reflected? Popular views may be similar throughout many segments of population, but many segments differ on important issues. • Expressed through media, political parties, interest groups = diverse opinions • Not a catalytic part in reality • Direct influence = constituent pressure. Rewards for compliance and noncompliance of representatives. Partisan pressure. Also through organized interest groups representing special constituency. Political parties, etc. • Indirect influence = lawmakers are instructed delegates. Public opinion polls determine aggregate view of people. Opinion polls do really influence what lawmakers do. Many times though civil liberties and rights --. Public opinion lags behind government policy Lawmaking and Social Science • Efforts to try to bring in quantitative analysis, etc. = however, must take into consideration who makes these Sources of Impetus for Law • Prereq for setting mechanism of lawmaking in motion • Detached scholarly Diagnosis • A voice from the wilderness = random people call attention to public problem • Protest Activities o Means of inducing change in social conditions. Strike action. Racial minorities, antiwar groups, and poverty organizations especially use. Boycotts. Violence? • Social Movements o Collective behavior for group of individuals organize to promote certain changes or alterations in certain types of behavior or procedures. Usually has 1. Stated objectives, 2. Hierarchical organizational structure, and 3. Well-conceptualized and precise change-oriented ideology. o E.g., to legalize abortion • Public Interest Groups o Private much better represented. o For a group to effectively promote its interests and provide impetus for lawmaking, it naturally must have access to lawmakers – this may depend on socioeconomic status of group. • Mass Media o Able to generate widespread awareness and concerns about evens and conditions. o Can make undesirable conditions visible to sizable segment of the public with unparalleled rapidity o Through provision of a forum for citizens’ concerns = can provide impetus. Letters to editor in newspapers, radio and talk show programs, etc. Vago Chapter 5: Law and Social Control • social controls that are activated when other forms of control mechanisms are ineffective or unavailable • Crimes without victims (drug addiction, prostitution, gambling), while collar crime, and control of dissent • Administrative law – control with licensing, inspection, and threat of publicity • Two basic processes of social control: internalization of group norms and control through external pressures = one is consequence of socialization – learning behavior through a group. People acquire motivation to conform to the norms, regardless of external pressures. The other is external pressure – negative and positive sanctions. Penalties on those who violate norms and promotion for those that conform. Some are official, others are unofficial. Informal Social Control • Expression of opinion and specific behaviors = gossip, fear of gossip = makes people conform • Not exercised through official group mechanism • More effective when society is face to face and relatively simple • Moral disapproval of deviance is nearly unanimous in such communities • Where people regularly interact – more cooperation • When community disintegrates and individuals cannot be counted to act in a certain way without overt guidance. Increased reliance on formal social controls. You also see more division of labor, hierarchy, etc. Formal Social Controls • Usually in more complex societies. Competing values and different set of mores and ideologies • When informal controls are insufficient to maintain conformity to certain norms • Specialized agencies, standard techniques, general predictability of universal sanctions • Teo types: imposed by state, and imposed by other agencies (church, business, labor groups, universities, clubs, etc). • Secure conformity to established modes of behavior. Criminal Sanctions • Treatment of criminals = ex of most highly structured formal system • Prisons in the US are HUGE operations and require a lot of financing – America has more people in prison and higher incarceration rat • Legalization = process by which norms are moved from the social to the legal level • Fitting punishment to crime is politically sensitive and controversial task • Goal of 1. Retribution or social retaliation against offender = punishment that matches the impact f the crime, state is agent of vengeance on behalf of victim. 2. Incapacitation = prevents violator from misbehavior during punishment time. Some are shaming penalties. Has a 3. Deterrent effect = law breaker and potential deviants. Individual vs. General deterrence = warning vs. to a specific person. Discouragement in future. Theory of deterrence predicated on assumption that individuals weigh the cost and rewards associated with alternative actions and select behaviors that maximize gains and minimize costs. • Severity of punishment has no link to crime rate • Instrumental vs. Expressive Acts o Instrumental – illegal activities directed toward some illegal end o Expressive – the act is the end itself. More impulsive and emotional, generally. Perpetrators of such crimes = unlikely to be concerned with future consequences of actions • High commitment vs. low commitment to crime as a way of life = fear of punishment will be a deterrent for low-commitment persons but not really for high-commitment offenders. What happens if low-commitment and expressive? Who knows… Discord Over Death Penalty • Proponents argue: it is a deterrent to others and it protects society. Constitutes retribution for society and victim’s family and serves to protect police officers and prison guards. Incapacitation = Removes possibility that offender will repeat the act. Deterrent? Not much proof • Against: aside from ethical and moral considerations… not a deterrent. Prison terms without parole would deter as many potential murderers as capital punishment. It is seldom imposed. Juries are less willing to convict when the penalty is death. • There are good fiscal reasons, potentially, in capital punishment. • More likely to affect the poor and minority group members than affluent whites. • Some argue that it actually ENCOURAGES homicide rather than deter. Silence witnesses. Even inmates favor capital punishment for some crimes. • Gun control consideration? Civil Commitment • Formal Control – medicalization of deviance. Process of defining behavior as medical problem or illness and mandating the medical profession to provide treatment for it. Includes drug abuse, alcoholism, viewing violence as genetic or psychological order, • Civil Commitment = noncriminal process that commits disables or dependent individuals, without their consent, to an institution for care, rather than punishment. Based on: 1. The right of state to assume guardianship over individuals suffering from some disability, 2. Police power within constitutional limitations to take necessary steps to protect society. Detention homes for juveniles, etc. Problem adolescents being shifted from legal to medical forum. • Have to define mental disorder in order to avoid putting them there because they are troubling to someone else. Not everyone can be medicalized. Some have to face punishment they deserve. Crimes without Victims • Abortion, homosexuality, suicide, alcoholism, heterosexual deviance, pornography, addiction, prostitution • Mala prohibita crimes = made criminal behaviors by statute, but no consensus as to whether they are crimes. Against public interest or morality. • Consensual transaction or exchange = this distinguishes them from other crimes. Lack of apparent harm to others. Difficulty in enforcing laws against them because of low visibility/complainants. Plaintiffless crimes. • Technological breakthroughs complicate them – e.g., porn • Formal control exerted on this behavior = expensive and generally ineffective • Drug Addiction o Many attempts to crack down on this o US has highest substance abuse rate in any industrialized nation o Simple and profitable industry. Cocaine market in US alone is 100 million o Little prospect of effective control of drugs through criminal law in US. War on Drugs = corrupted institutions of nation? o Perhaps should consider drug addiction as medical problem o Or can legalize or decriminalize drugs. Drugs are dangerous, but so is the illegality that surrounds them – govs can insist on minimum standard for it. • Prostitution o Sexual conduct in society causes a lot of anxiety with public morals. o Controls on sexual conduct are really complex o Should women be allowed to do whatever they want with their bodies? o 1. Accosting and soliciting, 2. Charge of common prostitution 3. Detention under health regulations = 3 broad reasons for arrests of prostitutes o Fair amount of discretion involved in controlling this o High-class call girls relatively immune… interesting. o Some want to narrow acts to those that are clearly harmful to society – decriminalization of prostitution would extent
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