U.S. LEGAL SYSTEM: STRUCTURAL-FUNCTIONAL ANALYSIS Review of Structural-Functional Theory: Analyzes the Components of Social Structure … & the Way It “Functions’

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!

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

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

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 revolutionary5. Change Results From Adjustment To Outside,

Differentiation, Internal Innovations 6. Integration Not Perfect Strains, Deviations7. Value CONSENSUS System Integration

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.

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)

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?

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

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”)

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 ProofDouble Jeopardy Ban -- Self-Incrimination BanLimitations on Searches & Holding Prisoners

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

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

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

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!

APPEAL SYSTEMU.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)

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

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

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 StatesNOTE: You Cannot Simply Say, “We’ll Do Better

With the Supreme Court! Let’s Save Our Time & Go Directly There!” (EX: Abortion Cases)

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!

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)

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!

ASPECTS OF U.S. LEGAL STRUCTURE PROTECT INDIVIDUALS1. Burden Of Proof2. Ban on Double Jeopardy 3. Ban on Self-Incrimination4. Limits on Searches5. Limits on Holding Prisoners w/o Charge6. 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.

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”

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!”

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!”

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

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!

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?)

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)

* 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.

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

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

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!

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?

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

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]

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

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

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

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

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

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

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

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

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?