What is the Law?

1. What is the Law? The rules and regulations made and enforced by government that regulate conduct of people within society.

2. The Law is Like a Car…

3. Dogs may be more aware of their restraints or leashes!

4. Law is an organizer…like a family has organizing principles, Values,…

5. Routines, roles, norms

6. However, in the family one is better able to understand and engage the powers that be…

7. The family relationship is full of trust and strain…

8. Love and appreciation!

9. The Santa claus idea…

10. What else can they get us to believe?

11. So let’s think hard about the law…

12. “one thing is certain” • “Every society that has ever existed has recognized the need for laws. These laws may have been unwritten, but even preindustrial societies had rules to regulate people’s conduct. Without laws, there would be confusion and disorder. This does not mean that all laws are fair or even good, but imagine how people might take advantage of one another without a set of rules.”

13. Certainty is One thing…but there are other things! • Imagine how people might take advantage of one another with a set of rules?

14. There is a tradition that does just that….max stirner, for instance • Then not only the bent bodies will straighten; the intellect free itself as might the bound Prometheus rid himself of his fetters and leave the rock to which he is chained, but we shall look back on the institutions of force, the state, the hangman, et al, as ghosts of an anxious fantasy.

15. Defining Justice… • The quality of conforming to the law • Or Conformity to truth, fact, reason

16. “Laws can be based on moral, economic, political, or social values.” • Moral…. • Economic…. • Political…. • Social…. • Think about laws against murder, protecting abortion rights, encouraging home ownership, laws against shoplifting, laws making it easier to vote, requiring opportunities for female participation in sports, stop signs, possession of marijuana, …

17. “Society must be based on the ‘Rule of Law’ • “The rule of law requires that the rules by which we are governed be known in advance and created through democratic processes.” • No after the fact, arbitrary actions or decrees • “All members of society… are required to support the legal system and obey its laws.” • Use excerpt from Nelson Mandela: The Struggle Is My Life

18. Could you use mandela’s arguments today? • As a minor, as a female, as a student…

19. Criminal LawvsCivil Law • Criminal laws • regulate public conduct and set out duties to society • Only brought by the government against a person charged of committing a crime • Penalties include incarceration, fines, supervision • Divided into Felonies and Misdemeanors – felonies are more serious and allow for sentences of more than 1 year • Prosecutor wins by proving guilt beyond a reasonable doubt

20. Criminal law vs civil law • Civil Law • Regulate relations between individuals and groups of individuals • Lawsuits are brought by someone who feels wronged or injured • Courts may award injured person money or may order other amends • Regulate many everyday situations such as marriage, divorce, contracts, real estate, insurance, consumer protection, and negligence • Plaintiff wins by convincing jury or judge with a preponderance of evidence (51%)

21. Constitutional framework • Separation of powers • laws are enforced by executive branch but may use executive order that has force of law • Laws are passed by legislative branch • Laws are interpreted by judicial branch • Federalism – divides power between the national and state governments

22. Constitutional framework • Checks and Balances • Congressional investigations of actions by President • The Constitution grants Congress the sole authority to enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers. • President Veto (refusal to approve) of laws passed by Congress -- pocket veto? • Judicial Review enables the courts to declare a law passed by Congress unenforceable (unconstitutional) • Flag burning, miranda rights, watergate evidence

23. Lawmaking – federal • Federal Legislature or U.S. Congress is 100 Senators and 435 members of the House of Representatives. • This body passes federal statutes which effect entire nation • Deal with issues of National impact such as environmental quality, national defense, homeland security, labor relations, veteran’s affairs, public health, civil rights, economic development, postal services, and federal taxes • There are 5 representatives for the state of Oregon. Earl Bloomenhauer, Darleene Suzanne Bonamici, Kurt Schrader (David Wu), Peter Defazio all Democrats and Greg Walden as the lone Republican congressman.

24. Lawmaking - State • State Legislatures make state laws – all but Nebraska have a two-house state legislature! • Meet on annual basis or every two years • Pass laws with statewide impact such as education, traffic, state taxes, marriage and divorce, most criminal laws, and the powers and duties of state government officials.

25. State versus federal • Power of federal government to pass laws is limited by Constitution. • Supremacy Clause – Constitution is supreme law of land – article 6 • States have broader power – States have power to legislate in all those areas over which the national government was not granted power in the Constitution • State can not enter into treaty with another nation or coin money • State can pass marriage and divorce laws

26. Agencies, Departments, and Bureaus do dirty work of Legislatures • Legislatures authorize agencies to develop rules and regulations to make laws more specific • Congress passed law requiring safe work conditions and then established OSHA or the Occupational Safety and Health Administration • OSHA then dictates specifics like height of guardrail, number of fire exits, type of safety equipment • EPA or Environmental Protection Agency works with state and local governments as well as industry on matters such as pollution and energy conservation • Department of Homeland Security, Department of Transportation, Zoning Commissions, ATF, EPA, number of animals killed by hunters, qualifications for professions…

27. Regulations become law without any vote! • However, agencies usually hold public hearings before issuing regulations • Regulations proposed by the federal government must be published in a special newspaper called the Federal Register, which allows people to learn and comment • This way regulations meet “rule of law” standards!

28. Stare decisis • Stand by the Decision • Settled Expectations are extremely important • Chief Justice Roberts “promotes role in stability and even handedness…it is not enough to think that the case was wrongly decided…that just poses the question it does not answer it.” • But what about changing decisions… • Unworkable Precedents • Doctrinal basis eroded from case law

29. Trial systems • Adversarial systems – contest between opposing sides – judge/jury can determine truth if opposing parties present their best arguments and show weaknesses of other’s • Inquisitional systems – judge is active in questioning witnesses and controlling process, including gathering and presenting evidence, conduct searches and take lead role in uncovering truth

30. Moral and practical Problem (pg 48 Street Law) • “It is better that ten guilty persons go free than that one innocent person suffer conviction.”

31. Suggested reasons for crime • Poverty • Permissive courts • Unemployment • Lack of education • Abuse of alcohol and drugs • Inadequate police protection • Rising population • Lack of parental guidance • A breakdown in morals • An ineffective correctional system • Little chance of being caught or punished • Influence of television and films

32. Crime and punishment • Total sum of violent crimes and property crimes reported in 2001…8,884,332! • Percent of reported crimes that led to an Arrest…….19.6%! • Some experts say that longer prison sentences is not the answer, but that certainty of punishment is more important than length of sentence. Pg 78

33. “It takes a village to raise a child” • In 2001, 10% of male students surveyed in grades 9-12 reported carrying a gun to school at least once in a 30 day period. • In 2001,Nearly one-third of students reported that drugs were available to them at school, an increase of 20% from 1993.

34. National council on Crime and delinquency (nccd) since 1907 • Strategies for reducing crime • Build safer communities – safe schools, after-school programs, community policing, and prevention of domestic violence and child abuse • Reduce cost and improve fairness of criminal justice system • Develop cost effective alternatives to incarceration, reserve prison for those who can not be treated safely in the community • Create effective drug control policies- reduce funds spent on catching dealers/users and expand funds for treatment and job training

35. Gun control- 2nd amendment • Is it protection against government attempts to ban or regulate firearms??? • Is it protection for the state to keep a militia??? • Does it protect citizens against government efforts to legislate in this area???

36. Gun control act of 1968 • Prohibits certain categories of people from buying or possessing guns -convicted felons, minors, illegal aliens • Requires serial numbers and establishes a licensing-fee schedule for firearms manufacturers, importers, and dealers • Prohibits mail-order sales and interstate sale of handguns • Penalizes carrying and using firearms in drug and violent crimes, set age guidelines for purchasers (handgun 21/ long gun 18)

37. Brady act – 1993 amendment • Created national system to instantly check the background of persons who want to buy a gun • Interim provision requiring local law enforcement to do checks and including a 5 day waiting period was ruled unconstitutional • But many states have enacted their own legislation…background checks, fingerprinting, firearm training… • In 2001, 8 million applications processed and 151,000 were rejected!!!

38. Concealed weapons • By 2002, 30 states had passed laws to make it relatively easy to get a permit to carry a concealed weapon. • 13 states make it more difficult by requiring a specific need…like a security job • 6 states and District of Columbia outlaw concealed weapons • Vermont does not regulate the carrying of weapons in any way! • “While many states are making it easier to get permits, polling data show that a majority of Americans favor stricter gun control laws.”

39. Substance abuse and crime • Alcohol – most widely abused substance in U.S. (it is a criminal offense to drink in Saudi Arabia) • Most people focus on tragic loss of life cause by drunk driving… involved in 40% of all highway deaths (2001) • US department of Justice estimates that alcohol was a factor in 35% of violent crimes! And two/thirds of the victims of violence by a spouse, former spouse, boyfriend or girlfriend report that alcohol was a factor!

40. DWI and DUI • Legal definitions refers to a person’s blood alcohol concentration (BAC) • BAC can be determined through blood, urine, and breath samples • Legal levels vary by state but generally impairment is between .01 - .09 grams per deciliter and intoxication is .10 g/dl or greater. • Use of drugs, legal or illegal, that impair driving ability also violate DWI/DUI laws

41. Penalties for dui and dwi • Monetary fine, enrollment in DWI school, community service, license suspended or revoked, and jail sentences. • In most states repeat offenders end up in jail, and in some states first offenses must serve jail time. • A driver who has been stopped may choose not to take alcohol test, but most states have implied consent- driver agrees to submit to BAC test in exchange for privilege of driving

42. Drugs and the law • 50-75% of persons taken into criminal justice system test positive for one or more drugs at time of their arrest • Federal drug law known as Controlled Substances Act classifies drugs into five groups • These depend on medical use, potential for abuse, and capability to create physical and psychological addictions

43. Classifications or schedules wikipedia • (1) Schedule I. • (A) The drug or other substance has a high potential for abuse. • (B) The drug or other substance has no currently accepted medical use in treatment in the United States. • (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision." • No prescriptions may be written for Schedule I • Under the DEA's interpretation of the CSA, a drug does not necessarily have to have the same abuse potential as heroin or cocaine to merit placement in Schedule I (in fact, cocaine is currently a Schedule II drug due to limited medical use

44. Classifications or schedules wikipedia • Schedule III controlled substances • (A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II. • (B) The drug or other substance has a currently accepted medical use in treatment in the United States. • (C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence." [20] • Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.], may be dispensed without a written or oral prescription • Anabolic steroids and Hydrocodone

45. Classifications or schedules wikipedia • List of Schedule V drugs • (A) The drug or other substance a low potential for abuse relative to the drugs or other substances in schedule IV. • (B) The drug or other substance has a currently accepted medical use in treatment in the United States. • (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV."[20] • No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose.[25] • Cough suppressants containing small amounts of codeine

46. Crimes against the person • Homicide • 1st degree murder • Felony Murder • 2nd degree murder • Voluntary Manslaughter/Involuntary Manslaughter • Negligent homicide • Assault • Battery • Rape

47. Murder is killing with malice • 1st degree murder – premeditated, deliberate, done with malice. • Felony Murder – Killing that takes place during the commission of certain felonies, such as arson, rape, robbery or burglary –not necessary to prove intent – malice is assumed • 2nd degree murder – done with malice but not premeditated (intentional but spontaneous)

48. Other varieties of killing… • Voluntary manslaughter is a killing that would otherwise be murder but it occurred after the victim has done something to the killer that would cause a reasonable person to lose control – words alone do not get there… • Involuntary manslaughter – no intent to kill at all. Unintentional killing resulting from conduct so reckless it causes extreme danger…playing with a loaded gun! • Negligent homicide – causing death thru criminal negligence – failure to exercise reasonable or ordinary amount of care…vehicular homicide • Noncriminal Homicide – soldier in wartime, killing of condemned criminal by executioner, police officer, and self-defense or defense of another

49. Assault and battery • “Assault is any attempt or threat to carry out a physical attack upon another person” • “Battery is any unlawful physical contact inflicted by one person upon another person without consent…actual injury is not necessary, requirement is intention.” • “Not much difference in law or practice between the uses of the words assault and battery” • Classifications – assault with intent to rob or murder, Aggravated Battery defined by harm inflicted – an unarmed assault that results in a serious physical injury is an aggravated battery rather than a simple assault. Stalking and Sexual Assault. Sexual assault includes a wide variety of victimizations from verbal threats of a sexual nature to unwanted sexual contact

50. Rape and Statutory Rape • Rape is sexual intercourse without consent • No consent if the victim is unconscious or mentally incompetent or if drugs or alcohol impair victim’s judgement • Aggravated forms involve perpetrator using a weapon or some other form of force • Statutory rape is intercourse between an adult and a minor • Lack of consent in not an “element” of the crime • Minor is incapable of giving legal consent • Trend in many states to not charge unless the perpetrator is several years older than the victim