U.S. LEGAL SYSTEM: STRUCTURAL-FUNCTIONAL ANALYSIS

1. U.S. LEGAL SYSTEM:STRUCTURAL-FUNCTIONAL ANALYSIS • Review of Structural-Functional Theory: • Analyzes the Components of Social Structure • … & the Way It “Functions’ (Works) • Often Assumes More Consensus Over … • Appropriateness of the Structure … • & Effectiveness of Its Operation … • Than Exists in Reality • It IS an Effective Tool for Analysis!

2. REVIEW: COMPONENTS OF FUNCTIONAL ANALYSIS • Drawn From Biology: • Structure of an Organism • Functions of Different Parts for Whole • Structure of a Total Unit: • Component Parts • Functions of Each Part … • For the Whole Community … • For Other Parts of the Whole

3. REVIEW: DIFFERENT TYPES OF FUNCTIONS • Manifest & Latent Functions (Roles, Activities) • Manifest Functions/Roles: Easily Identified – Obvious • Latent Functions/Roles: Hidden – Hard to See • (Eu)functions & Dysfunctions • (Eu)functions: Play Positive Role, Help Group • Dysfunctions: Play a Negative Role, Hurt Group

4. REVIEW: BASIC TENETS OF FUNCTIONAL THEORY 1. Analyze “System" of Interrelated Parts 2. Cause & Effect Relations, Multiple, Reciprocal 3. "Dynamic Equilibrium"  Minimal Change 4. Slow, Adaptive Change, Not revolutionary 5. Change Results From Adjustment To Outside, Differentiation, Internal Innovations 6. Integration Not Perfect  Strains, Deviations 7. Value CONSENSUS  System Integration

5. FUNCTIONAL ANALYSIS OF U.S. LEGAL “SYSTEM” • Not Really a Single “System” • Actually 51 Different Legal Systems • Unlike Most Major Nations (EX: Europe) • Federal: U.S. Constitution, Federal Laws • 50 Different State Systems: • 50 Different State Constitutions, Sets of Laws • Cover All Aspects of Life: Most Criminal Laws, Police Management, Civil Infractions, Courts, Building Codes, School Requirements, etc.

6. SOME CONSEQUENCES OF THIS LEGAL STRUCTURE • No Unified Law Enforcement • Many Levels, Jurisdictions • Conflict of Laws – EX: • Building Codes – Mich v. Ohio (Small Businesses) • Driving Rules (Front Licenses; Speed Limits, Turns) • Confusion • Impossible to Keep Track of Everything! • Need for Extradition (from State to State)

7. LAW ENFORCEMENT IN U.S. SYSTEM Enormous Discretion at All Levels • Investigation • What Cases to Charge, Investigate • Confrontation • Who to Confront? How? What Circumstances? • Disposition • Imprison? Probation? Suspended Sentence? • Use of Force • When & How Much?

8. CONSEQUENCES OF DISCRETION • Some People More Likely “Targets” • Minorities – the Poor • Others – Whites, Middle & Upper Classes • More Likely to Be Believed, Get a “Break” • Ex: Study of Delinquents: Working Class Declared “Delinquent”; Middle Class Released to Parents • Many Sociologists Believe this Issue Should be Major Focus of Sociology of Law

9. TYPES OF DISPUTES BEFORE THE COURTS 3 Types of Social Interaction Processes: • Private: Between Individuals or Other Private Parties (EX: Corporations) • Public Initiated: Criminal Law – “Public” as the Accuser • “Public” as the Defendant – EX: Suits to Desegregate Public Schools, or Eliminate Preferences for Certain Groups (UM “Quotas”)

10. STRUCTURAL CHARACTERISTICS OF U.S. LEGAL SYSTEM STRUCTURAL PATTERN OF SOCIAL INTERACTION: AFFECTS U.S. LAW & ITS ENFORCEMENT Adversary System – Appellate System Judicial Review – Burden of Proof Double Jeopardy Ban -- Self-Incrimination Ban Limitations on Searches & Holding Prisoners

11. ADVERSARY SYSTEM • U.S. Legal System Is Adversarial • An Argument Between 2 Parties • State Vs. Individual • 1 Individual Vs. Another Individual • 1 Corporation Vs. Another Corporation • An Individual Vs. A Corporation … And So On • Always A Confrontation Between 2 Parties

12. COROLLARIES OF ADVERSARY SYSTEM (#1) • Winner – and a Loser! • Not All Legal Systems Are Like This • EX: China: Great Emphasis on “Saving Face” • Law Focuses on Developing Agreements … • Conciliation & Compromises Among Disputants

13. COROLLARIES OF ADVERSARY SYSTEM (#2) • Only an INJURED PARTY Can Bring Suit • Designed to “Settle Disputes” • NOT to Resolve General Inequities … • NOT to Determine Appropriateness of a Law • EX: To Test a Law … Need “Interested Party” • Roe v. Wade: Had to Find a Pregnant Woman Who Wanted an Abortion & Was Denied

14. COROLLARIES OF ADVERSARY SYSTEM (#3) • If Issue Disappears … Case Is “Moot” • Time Problem: Courts Are Slow – Pregnancies Are NOT! • Roe v. Wade: By the Time the Court Was Ready to Decide … • The Case Was Over! (Baby or Illegal Abortion) • An Exception Had to Be Granted by Court to Continue Case • Similar: Child Custody Cases: Child Grows Up!

15. APPEAL SYSTEM U.S. Law Allows for Appeals – NOT Universal! • DEF: Lower Level Cases Reviewed for Errors • Advantages: • Great Protection for Individual • Lower Level Errors Can Be Detected on Appeal • Sent Back for Retrial • Reminds Lower Courts of Being “Watched” • Also True of Pre-Court Actors/Roles (Police, Prosecutors)

16. APPEALS SYSTEM (ctd) Limits on Appellate System • Conditions for Review: • Case Must Have Been Heard by a Lower Court • There Must Have Been an “Interested Party” in 1st Place • Higher Level Courts Can’t Take Cases de novo • MUST Have Been Heard in Lower Court 1st • Lower Court Process Can Cause Considerable Delay

17. APPEALS SYSTEM (ctd) • EX of Delay in Lower Courts: • Voting Rights Cases in Southern Courts • Judges Used Adjournments & Delays … • To Give Southern Registrars “More Time” … • To Drop Complex Tests & Requirements • & Delay an Expected Supreme Court Ruling Favoring Registration of Blacks • Prevent Blacks from Voting for a Few Decades

18. APPEALS SYSTEM (CTD) • Limitation on the U.S. Supreme Court: • “Initial Hearings” Limited to a Very Small Number of Cases • Cases Involving Foreign Governments (or Their Ambassadors/Representatives) • Cases Between States NOTE: You Cannot Simply Say, “We’ll Do Better With the Supreme Court! Let’s Save Our Time & Go Directly There!” (EX: Abortion Cases)

19. APPEALS SYSTEM (ctd) • Americans Are Not Aware or Appreciative of the Value of the Appeals System! • Not Every Society Has It! • Britain, France, Spain Have an Appeals System • Ancient Greece Had No Appeals System • Most Societies Studied By Anthropologists Lack It • China Has a System in Which the Defendant May Get an Attorney … But the Attorney’s Power Is Limited (Cannot Register a “Not Guilty” Plea) • “Appeal” Is Possible  Chinese Communist Party!

20. APPEALS SYSTEM (sum) • Power of U.S. Supreme Court: • Right of Judicial Review: • Of Decisions of Lower Courts • Of Actions of Other Branches of Government • U.S. Supreme Court Has Power to Arbitrate the U.S. Constitution … • … To Decide if Actions of President or Congress Violate the Constitution(Obamacare)

21. U.S. LEGAL STRUCTURE:PROTECTING INDIVIDUALS • U.S. Founding Fathers Had Bad Experience with England! – That’s Why They Came Here! • Wanted to Ensure Same Dangers to Individual Did NOT Occur Here! • “Bill of Rights” Passed at Same Time as U.S. Constitution • Special Protections for Individuals, States … • In Order to Get the States to Support the Constitution!

22. ASPECTS OF U.S. LEGAL STRUCTURE PROTECT INDIVIDUALS • Burden Of Proof • Ban on Double Jeopardy • Ban on Self-Incrimination • Limits on Searches • Limits on Holding Prisoners w/o Charge • Limits on Cruel & Unusual Punishment * Ref. to WSU Repetition of CBS Survey: “Would the Bill of Rights Pass Today?” MC Sengstock, 1974. “Self-Interest & Civil Liberties.” Criminal Law Bulletin10 (1): 63-79.

23. INDIVIDUAL RIGHTS:BURDEN OF PROOF • Prosecution Must Prove Case Against Defendant … • Beyond Reasonable Doubt (Not Any Doubt) • True Only in Criminal (Not Civil) Cases • Not Present in Other (British) Systems • * Survey: Some Americans Do Not Agree – Undue Burden on “Fighting Crime”

24. INDIVIDUAL RIGHTS:BAN ON DOUBLE JEOPARDY • Defendant Cannot Be Tried 2x for Same Crime • May be Tried for 2 Different Crimes from Same Circumstances (Assault & Violate Civil Rights) • Or in 2 Different Jurisdictions (State & Federal) • EX: Civil Rights Era Murder Cases • Also May Have a Criminal & Civil Case • EX: OJ Simpson: Acquitted of Killing Wife; “Wrongful Death” Civil Suit • * Survey: “Try Them as Often As Needed!”

25. INDIVIDUAL RIGHTS:BAN ON SELF-INCRIMINATION • Accused Can’t be Forced to Testify Against Self • Confession Can’t Be Used Unless Freely Given • Inform Defendant of Rights (Miranda v. Ariz) • Police Investigations Are Confusing … “Tricks” • EX: Immigrant Girl, Limited English & Civics • “Tell us. You’ll Feel Better.” She Spilled All. “Can I Go Home Now?” • * Survey: “Make Them Talk!”

26. INDIVIDUAL RIGHTS:LIMITS ON SEARCHES • Cannot Search Individual W/out Warrant or Permission – or Police’s Own Protection • Reaction Against British Police Searches • * Survey: “The Police Know! If They Believe Something’s There, They Ought to Be able to Find it!” • * Worried that Evidence Might be Hidden If Search Was Delayed For Warrant

27. INDIVIDUAL RIGHTS:BAN ON HOLDING PRISONERS • Suspects Cannot Be Held Indefinitely for “Investigation” Without Being Charged • Must Be Permitted to Obtain Legal Counsel & Have Contact with Family, Friends • * Survey: Many Thought Police Should Be Able to “Get” Criminals in Any Way Necessary • Volumes of Legal Cases Have Focused on These Issues!

28. INDIVIDUAL RIGHTS:CRUEL & UNUSUAL PUNISHMENT • Punishments Such as Beatings, the ”Rack” Are Not Acceptable • Continued Debate Re Capital Punishment: Is It Cruel & Unusual?” • Mixed Public Opinion on These Issues. • Great Support for Capital Punishment • Texas: Hundreds of Cases Each Year • Mich: One Of 1st States to Banish (Reconsider?)

29. SELF-INTEREST and CIVIL LIBERTIES • WSU Sociology of Law Student Survey: • Found Great Deal of “Self-Interest” in Support of Constitutional Guarantees • People Support if Protected “People Like Me” • EX: Home Searches Were Less Approved • NO Support if Protected People “Not Like Me” • EX: “Criminals” – (Not Like Me) Anything Goes! • Search – Torture – Death! (Gitmo, Waterboard)

30. * CIVIL LIBERTIES STUDY • WSU Repetition of a CBS Survey :“Would the Bill of Rights Pass Today?” • Would It Pass in 1970? Probably Not! • Would It Pass in 2012? Probably Not! • DID It Pass in 1789? NO! It Was a Product of Forced Agreement: Agree to All This – Or Don’t Have a Nation At All! M. C. Sengstock, 1974. “Self-Interest and Civil Liberties.” Criminal Law Bulletin 10 (1): 63-79.

31. U.S. LAW: FUNCTIONAL vs. CONFLICT THEORY What Is Functional Theory? What Is Conflict Theory? Which Is Relevant to U.S. Law? Consider Some Recent Court Decisions

32. FUNCTIONAL THEORY: THEORISTS & BASIC PREMISES • Theorists: Durkheim, Weber, Merton, Parsons • Premises? • Who Makes the Laws? • To Whom Does It Apply? • Is it Applied Equally? • Consensus Over Law, Social Structure

33. CONFLICT THEORY OF LAWSOME RELATED U.S. DECISIONS • Views of Quinney, Chambliss, Other Marxists • Law Differentially Applied … • To Different Classes, Social Groups • Powerful Most Likely to Become Leaders • Societal Leaders Make the Laws • They Favor Their Own Groups … • In Both Law-Making & Enforcement • EX: Corporate Financial Offences – Not Crimes!

34. RELATION TO 1970s SURVEY • Just Discussed the 1970s Student Survey • Is Survey Out of Date? • What If We Repeated It Today? • What Would Conflict Theorists Think About the 1970s Student Survey? • Would They Agree? … Disagree?

35. RECENT COURT DECISIONS – EX1 • 2000 Election – Numerous Complaints: • Election Irregularities – Esp. in Florida • Small Margin; Contested Ballot Complaints; Ballot Designation Unclear; Voters Rejected • Gore & Dems Filed Suit, Demanded Recount • Florida Supreme Court Agreed • George W Bush et al v. Albert Gore, Jr, et al.12/12/00

36. BUSH v GORE (ctd) • Bush & Supporters Appealed to US Sup Ct • Recount Itself Would Violate US Constitution • Claim: No Standards to Guide Ballot Recount • EX: “Chads”: Clips from Punch Card Ballots • Incomplete Punches: Legal? Or Not? • U.S. Supreme Court: Inappropriate to Evaluate on Basis of Unclear Standards [Patron St. Elections: St. Chad, English Bishop, c.650]

37. CONTRAST: WHREN v. U.S. (1996) • Issue: “Pretextual Stops” • D.C. Case: Drivers Ostensibly Stopped for Traffic Offenses  Cars Searched • Driver Complaint: Traffic Violations a “Pretext” • Alleged Offenses Not Real – Search Was Real • Those Stopped Nearly Always Minorities • Supreme Court Found Such Stops Reasonable • No Need to Question Police Motives

38. QUESTION RE ABSENCE OF STANDARDS • Why Is Absence of Standards Justification for NOT Permitting Recounts in Elections … • But NOT a Justification for Prohibiting Police Searches of Motorists? • Does Supreme Court’s Concern for “Predetermined Standards” Depend on Social Class of Appellant? • Upper Class GOP Presidential Candidate vs. • Lower Class/Minority Motorist

39. RECENT COURT DECISIONS – EX2 • Affirmative Action v. Rights of Majority • Original Premise: Groups Formerly Underrepresented in Work, Education, etc. … • Entitled to Special Attention in Schools, Jobs • Scholarships, Job Consideration, etc. • Blacks, Native, Americans, Hispanics, Women • Greater Opportunity to Those Not Favored • Greater Diversity Advantage to Institutions • Provide All Students Diverse Contacts

40. ANTI-AFFIRMATIVE ACTIONPOINT OF VIEW • Opponents of Affirmative Action … • Argue Programs Give Unfair Advantage to Minorities • Disadvantage Members of Majority Group • Majority Persons Left Out Did Nothing to Cause Past Disadvantage to Minorities

41. KEY ISSUE • Assume 2 Candidates, Both Male, 22 • Prestigious School (EX: U of M) • Equal H.S. GPA, Test Scores, etc. • Affirmative Action Programs Allow Extra Points for Minority Candidates • THIS Candidate Not Responsible for Past Discrimination … • Claim: Unfair to Majority Candidates • Need for Totally Objective Scores as Standards

42. CRITIQUE OF MAJORITY VIEW • Assume ALL Admissions to Colleges, Job Hires Have been Totally Objective in Past • Other Factors Have Often Been Used to the Advantage of Various Groups – Including Members of the Majority – EX: • Harvard, Yale, Ivy League: • Slots, “Points” for Children of Alumni, Donors • Sports Stars • These Advantages Are Rarely Questioned • Help the Majority – Build Sports Teams

43. COURT DECISIONS, NEW LAWS • Bakke Decision (Calif Univ System, 1978) • U. of M. Court Cases (Law & UG, 2003-04) • Jennifer Gratz & Hamacher v. Bollinger • Mich State Const. Amend (2006. Prop. 2) • Impact on Institutions: • Major Changes in Policies • Ex: Sociology Dept Scholarship • U.S. Appeals Court (2011)  Overturn Prop 2

44. QUESTION • Why Is It OK when Sports Stars or Children of Alumni & Financial Supports Get Advantages • NOT OK When Minorities Get Advantages? • EX: Athletes Often Have Barely the Academic Requirements … • Minorities May Be Only 1-2 Points Below • Many Prominent Americans (Politicians!) Have Benefited from Family Admissions, Scores

45. CONTROVERSY How Would the 2 Perspectives … Functional Theory – Conflict Theory Deal With These Issues? Which Do You Agree With? Do You Think This Discussion Would Come Out … At U of M? Harvard? Yale? How Does This Relate to 1970s Student Survey?