DURKHEIM, MARX, WEBER
Describe the two types of solidarity according to Durkheim and what law is associated with them
MECHANICAL solidarity and REPRESSIVE laws (ie. criminal law)
ORGANIC solidarity and RESTITUTIVE laws (ie. contract law)
What is shrinking
Courts/judges avoid accepting or adjudicating certain cases in order to pre-emptively avoid negative repercussions from institutional superiors, other administrative bodies, or public opinion
What was Harrington's research population and type of data used?
Trust and Estate planners
STEP documentation and other historical/archival materials
What is judicial colorblindness? What is it a form of?
def: judges assume a “racial context that presumes a level present-day social and economic playing field” (3043)
It is a form of judicial myopia
What is a population and what is a sample
population: Group the researcher wants to draw conclusions about
sample: Group who the researcher will collect data from/about
Does Marx view law in capitalist societies as:
A) law functions to legitimize private property and repress class conflict
B) law is designed to serve the interest of the bourgeoisie
A
(pg. 72)
Li's Marriage Unbound takes which of the following approaches:
(A) A quantitative approach
(B) An iterative approach
(C) A positivist approach
(D) An interpretivist approach
D: interpretivist
What kind of wealth is Harrington discussing? What kind of wealth are we NOT talking about.
Generational wealth
Wealth representing the accumulation of assets over time, with long-term effects
Wealth can be passed down through generations creating SYSTEMIC patterns of inequality
Not talking about high vs. low income
In Brito, Payne and Wong's What I Do for My Kids: Negotiating Race and Racial Inequality in Family Court what was the research method?
FOCUSED ETHNOGRAPHY
def: examines specific and well-defined interactions, acts, or social situations and is characterized by relatively short-term field visits and intensive data collection to observe specific structured events or activities, such as courtroom proceedings (3032)
List 4 types of data
experiment, survey, interviews, existing sources, participant observation, statistics, focus groups
What are the three types of authority according to Weber? Give a brief description of each.
Traditional authority: Rooted in history and tradition (ie. Monarchy)
Legal-rational authority: Rooted in belief in legal and rule SYSTEM (ie. Bureaucracy)
Charismatic authority: Devotion to charisma/sanctity/heroism of a PERSON (ie. Joseph Smith, MLK)
What was Michelson's population and sample?
Population—Chinese judges adjudicating divorce and child custody matters (You can tell this from the data source—judicial opinions)
Bing found that fees and fines following a "formal equality" system did what?
monetary sanctions inflict punishments that are unequal by race and ethnicity and promise to become even more so as market- based economic inequality grows. (133)
In the context of Mertz, what is pragmatics?
The structure of language/communication as it is created through social interactions
(NOT what we say)
How we say it
Non-verbal communication
Contextual propriety
ex. quotations used in law classroom settings
What is positivist vs. interpretivist? Give one example for each
Positivist: more QUANTITATIVE (ex. Michelson)
Society shapes the individual
Seek to find statistical correlations/causality
Generalizability
Strive for objectivity, detachment
Interpretive: more QUALITATIVE (ex. Brito, Mertz)
Theory building
Understand relationship between structure and agency
Statistical knowledge is itself the product of myriad confounding social constructs
What is law to Durkheim?
Law is the “visible symbol” of social solidarity
The laws in a given society can tell us something about the basis of solidarity in that society. THIS is Durkheim’s primary interest in law.
LAW REPRODUCES SOCIAL SOLIDARITY: Punishing deviants brings the rest of society together, reminds them of shared moral boundaries, ritual reaffirmation of collective values
LAW REFLECTS SOCIAL SOLIDARITY: Repressive laws show core, universally shared, deeply held moral beliefs
LAW REINFORCES SOCIAL STABILITY: Restitutive law regularizes the relations between specialized social functionaries
Describe Li's primary questions
First, how has women’s integration into the urban labor force affected marriage, family life, and gender relationships in Chinese society? among those mired in marital discontent, who manages to enter the official justice system? what happens inside? how does the system handle conjugal disputes and conflicts? in what ways does the system redress inequality and injustice? or, in what ways does it reproduce and reinforce male dominance in the family and society at large? Finally, how could a study of women’s legal mobilization forge new ground for our understanding of law, politics, and inequality in an authoritarian state?
List two of the ways Trust & Estate planners use to secure intergenerational wealth for their clients?
Connect this concept to another reading from the course.
1. Tax legal loopholes
Tax avoidance -- SECURE wealth
2. Lobbying
Lobbying to create more of these loopholes
3. Managing inheritance
Marx: Ruling class using their wealth/power to their advantage
What was Brito's data? Why did they choose that specific data source?
State A and State B (pg. 3031)
"State A is one of several states that provides appointed counsel to low-income child support obligors facing incarceration through civil contempt."
"State B does not provide counsel but has implemented other legal assistance measures to facilitate self-representation by obligors."
Within each state, we concentrated our data collection in three counties.
These counties were chosen because their family courts vary in size and urbanicity while serving communities with different levels of racial, ethnic, and economic diversity.
Give two examples of readings that used ethnography.
Li, Brito, Frohmann, Mertz, Bing
Describe Weber's typology of law
Rational: Rules-governed, logically consistent, abstraction, uncovering of truth through logic
Irrational: ...not these things
Formal: Procedural rules, logical principles (process-oriented)
Substantive: Substantive goals (political, religious, moral, etc.) (outcomes-oriented)
Compare and contrast Michelson & Li's population and methods
Michelson is more quant, Li is more qual.
Michelson focuses on judges, Li focuses on women facing divorce
Michelson data source is judicial opinions, Li focuses on ethnography
What is disparate impact vs. differential treatment? And which of these is addressed in Bing?
Disparate impact—members of certain minority groups offend at higher rates, and/or are disproportionately susceptible to the sanctions of facially neutral laws and practices (e.g., mandatory minimums)
Differential treatment—overt or implicit discriminatory treatment of certain minority groups by criminal legal system actors
Bing has more to do with disparate impact
In Frohmann, what are discordant locales and how were they used?
Schemas of geographical location + cultural community that, when juxtaposed, are used to justify case rejection
Discordant: “disagreeing or incongruous”
Locale: a place where something happens or is set, or that has particular events associated with it
They use them to determine convictability
Explain the "process" of reflexivity
The regular exercise of the mental ability, shared by all normal people, to consider themselves in relation to their (social) contexts and vice versa
EXAMPLES:
- Make researcher’s subject positions and impacts clear (positionality)
- Make researcher’s political assumptions and implications clear
- Recognize that research involves power relations
- Overtly consider, acknowledge, and critique their own ways of thinking about or researching the world; acknowledge and engage with others’ critiques of these considerations