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 1 st Place Higher Level Courts Can’t Take Cases de novo MUST Have Been Heard in Lower Court 1 st 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 1.Burden Of Proof 2.Ban on Double Jeopardy 3.Ban on Self-Incrimination 4.Limits on Searches 5.Limits on Holding Prisoners w/o Charge 6.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 1 st 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 LAW SOME 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 ACTION POINT 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?