NOTE: Free essay sample provided on this page should be used for references or sample purposes only. The sample essay is available to anyone, so any direct quoting without mentioning the source will be considered plagiarism by schools, colleges and universities that use plagiarism detection software. To get a completely brand-new, plagiarism-free essay, please use our essay writing service.
One click instant price quote
Summary of law: Rules By, or for, society Opposite of anarchy Provide benefits (stability, fairness, protection) Common will or elite design Enforced by coercion (punishment) Allocates resources Is a special process Involves certain people to carry it out Weber Law Law is a set of rules Laws are punishable; they can be enforced through coercion Laws are enforced by persons assigned to this job Laws are given consistency and predictability through courts Rational Law What weber s definition is know as Man made law as a tool for governing self The rules we live under and by What if we disagree with the law? You can disagree, but obey You can disagree and not follow the law because it violates higher principles, or NATURAL laws Natural law traits Consist of basic, universal principles regarding human behavior Principles rest on morality (can be religious) Generally agreed upon consensus Higher than manmade law; does not depend upon a gov t for it legitimacy Still involved anytime somebody violates Rational Law Anti abortion trespassers Civil rights protesters marched, even with judicial order against it Those that harbored fugitive slaves Rational law tradition (2 systems) Civil law (continental europe) Foundation of law is a written code Judges decide based on code Common law (us and england) Was unwritten and depended on precedent and tradition. Cases ought to be decided the way similar cases had been decided in the past In old england, the unwritten decisions were passed down from judge to judge America introduces codification to COMMON LAQ Writing the law down lets more people read and know the law Codification makes a map to decide issues of law Map is good guide but it doesn t deal with every contingency Process of legal reasoning (3 steps) 1. find a case similar to the one you have 2. find what rules of law was in the case 3. apply that rule of law to present case State vs Pendergrass (1837) NC criminal case Assault and battery Schoolteacher whipped a student with a switch Decision Authority of the teacher equals the authority of a parent Parents have power to correct kids behavior with moderate physical correction Teachers may administer moderate correction MODERATE CORRECTION = cannot result in permanent injury and the teacher cannot use authority to cover malice Joyner vs Joyner (1862) Mrs joyner wants to divorce her husband Husband whipped, switched, and verbally abused his wife Decision What were the circumstances of the punishment The wife must be subject to her husband Every man must govern his household Look to genesis in the bible to see how a man must act Law gives power to the husband over the wife COVERTURE a doctrine over women at the time of the decision.
Feme sole- applied to a woman on her own Femme covert- applied to a married woman COVERTURE says that a husband and a wife are united as on in marriage and the only one existing for legal purposes is the man State vs Black 1864 Wife commit quarrel with the husband Hsu band pulls wife to the floor but restrains himself and does not strike her Decision Law will not invade the domestic forum or go behind the curtain. State vs Rhodes 1868 Assault and battery the husband strikes 3 blows with a switch the size of his fingers Decision If the subject had not been the wife, the incident would have been batter without a? ? ? Court said it was not exactly like BLACK since the husband was provoked in BLACK Permanent injury is still wrong A moderate correction that does not produce permanent pain or injury is ok. It no longer must be determined if malice is a factor or not.
State v mary 1870 Man threatens his wife with a knife and attempts to strike her with it. She gets away and no permanent injury is incurred. Decision Permanent pain and injury stands as precedent In this case, the husband tried to stab his wife so he should be guilty Precedent is 2 faced. If precedent is supportive, a lawyer binds self to the precedent. If the precedent is contrary, the lawyer makes the argument that it doesn t apply because the current instance is different.
State v Oliver 1874 Intoxicated husband threatens to whip his wife and whips her hard He is found guilty (there were witnesses, one of which had to restrain the husband) but appeals Decision All of the old cases were decided properly How can a man assault his wife without malice or cruelty present The conviction stands The precedent is held, but seen in a new light PRECEDENT Legal system is conservative and rooted in the past The system is not static. It is ever changing Precedent is a framework and therefore limiting. Arguments are made based on precedent It sets the situation into the alternative universe of the law The Nature of law and values Professionalism and Values Lawyers are bound to the rules of their profession Ideally, personal and professional values are the same. Realistically, this is impossible What happens when they conflict? Rules of professionalism are supposed to take priority Reading 3. 2 simple living and hard choices by m. Flannery Is a good dr in rural appalachia A good dr never accepts friends as patients or patients as friends.
This is impossible in her situation since she is in an extremely rural setting. Dr saw patients with health problems that were due to a lifestyle unavoidable Flannery believes personal values should overrule professional value sometime 2 traditions in western law Inquisitorial (france, germany, spain) Court searches for the truth Judge is the primary fact finder Adversarial (us) The advocates for each side are central to the case Evidence is introduced by the sides The judge is more a referee The truth will come after both sides present their best case The lawyer has the interest of their client only. The lawyer does not work for the court, truth, or justice Doing the very best for a client may present a value dilemma Reading 13. 1 ETHICS OF ADVOCACY Loyalty of lawyer runs to client, he has no other master Advocacy may include concealing the truth. Not even truth is a lawyer s master Advocacy requires a lawyer to start with something to be proven and this is as true of facts as it with propositions of law he will waste a lot of time if he goes in with an open mind DETACHMENT this is necessary to survive as a lawyer Treat the whole thing as a game, a contest Look at it as a craft and work on ur craftsmanship P 342? ? ? 3 Lake pleasant, new your murder case Confidentiality is critical to the adversarial system 13. 4 things that lawyer can control during litigation are personal presentation and the presentation of evidence 13. 2 when a case is decided, it then has the backing of the state on its side. The justice system is far less adversarial today, then when the article was written LEGAL work in the US Lawyers enjoy a monopoly in legal services US has more lawyers per capita than anywhere else in the world Dimensions of the law profession: Regulation of access into the profession Control behavior of people in the profession Ability to remove people from profession Can t practice w / out license Have a higher profile Practice of law is stratified of legal work Why stratified? Best rise to the top Certain kinds of legal work is more challenging The elite try to keep themselves at the top (elite self preservation) Legal status equals client status 11. 1 Tocqueville 301 tocqueville arrives in the US in 1831 to explain the US to European readers.
His book was Democracy in America and one of the first things he analyzed was lawyers in the US. Few pts about lawyers Inherently conservative people Less afraid of tyranny than of arbitrary power Like order, predictability, and legality more than freedom Probably necessary to maintain democracy Act as the break on unchecked democracy Very important since the us has a common law system with precedent European countries use a civil code with civil law US citizens did not know the law and needed a lawyer. Scarcely any political question arises in the US that is not resolved, sooner or later, into a judicial? He presented an overall positive, uplifting portrait of the aristocratic, essential lawyer class EVOLUTION 1790 - 1870 Profession a profession has internal rules that all members must abide by.
Rules for admission, etc are present. The profession retains a certain degree of power and authority over the line of work. Did no exist before 1870 Free market law anybody that wanted to practice law could. People didn t want professional standards because they were seen as too undemocratic.
Practice simple laws Lawyers were typically solo or with only one partner Lawyers were general practitioners with no real specialization Most lawyers spent most of this time in the court room Quality of a lawyer was judged by ability in the court room Education potential lawyer would apprentice to a current lawyer Would also help to learn the law Law schools no the typical route 1828 harvard law had 128 and 1840 only 9 universities affiliated with law school 1870 - 1945 Early professionalization 1870 new york bar association formed for the first time in NY city 1878 bar association is formed set their own rules and policed their members standards of admission were set (bar exam) organized boyd now look out for and advance the interests of leg profession volume of work grows, especially regulatory law emergence of the legal hierarchy Modern la Law firms develop, practices began to specialize, less time spent in court room Education Law schools Provided efficient way of training enough new lawyers Efficient way of developing new layers into hierarchy 1870 + had been to law schoo 1910 2 / 3 1945 consolidation of professionalism practice: law firm becomes more corporate and less a family organization 1945 60 % solo 1975 fewer than 50 firms with 100 + members now hundreds some with thousands legal work explosion in environmental, civil rights, and internet law service 11. 2 Big Casino Grutman is a well known civil attorney Says lawyers are Weapons can be offensive and defensive Cabbies get u from point a to b but they need to be paid. Only take u where u want to go Alchemists make gold from nothing, investor Contestants compete in the contest of ur trial Doctors repair the damage to your life Con men con the jury, client, and other lawyers Boxer get paid only when they win Gunfighter hired not only to protect u, but to ensure that they can t be hired by somebody else and used against you Lawyers do something of value for their clients Translate client s interests into legal settings Have a degree of power in the relationship Conflict between lawyer (who have power) and client (who has the need) 1870 christopher lang dell dean of the law school harvard. Changes purpose of socrates method is not to hurt and not a form of sick pleasure for the professor. Attempts to set student to think like lawyers and forces them to accept that personal opinion does not matter 12. 1 Law school is a total institution Individual identity is removed and replaced Similar to tearing down a person and rebuilding that person, as is done at the mental institutions and in military training.
Mortification stripping down of individual identity. This is followed by the gradual rebuilding of the new self
Free research essays on topics related to: individual identity, civil law, bar association, common law, court room
Research essay sample on Individual Identity Bar Association
