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74 terms

Lawmaking

STUDY
PLAY
Perspective on Lawmaking
Rationalistic Model
Functionalist View
Conflict
Moral Entrepreneur
Rationalist Model
that laws (criminal laws) are created as rational means of protecting the members of society from social harm
Functionalist View
by Paul Bohannan, is concerned mainly with how laws emerge, also suggests that failure in other institutional norms encourages the reinstitutionalization of the norms by the legal institution
Conflict
value dissensus, unequal access to economic goods and the resulting structural cleavages of a society as the basic determinant of laws
Moral Entrepreneur
the precipitation of key events to the presence of an enterprising individual or group
Administrative Adjunction
is the process by which an administrative agency issues an order
Adjunction
is the administrative equivalent of a judicial trial
Stare Decisis
need not prevail and the high turnover of top - level administrators often results in a lack of continuity
Legislative Lawmaking
a response to some kind of problem, one acute enough to intrude on the well-being of a large number of individuals and their organizations or on the well-being of the government itself or conspicuous enough to attract the attention of at least some legislators
Judicial Lawmaking
is usually directed as other gov't agencies rather than out private individuals
Influences on Lawmaking Process
Science/Social Science
Interest Groups
Public Opinion
Science/Social Science
Use of scientific data to influence lawmakers
Interest Groups
Groups formed to influence the lawmaking and policy making process
Public Opinion
Public sentiments, attitudes, propensities
Interest Group Thesis
contends that laws are created because of the special interests of certain groups in the population
Techniques of Interest Groups
1)To bring conflicts to a court's attention by initiating test cases
2)To bring added info to the courts through amicus curiae briefs
3)Communicate with judges indirectly by placing info favorable to the group's cause in legal and general periodicals
Amicus Curiae
friend of the court
People
a numerical majority, an influential elite, blacks, women, the poor, the middle class, the young/aged, migrant workers, students/college professors and so forth
3 Types of Influences of Public Opinion
Indirect
Direct
Organized Interest Groups
Indirect
Public opinion information is transmitted to lawmakers via a 'delegate' from a special interest group - or agency— indirect pressure on the part of Interest Groups to support IG on behalf of constituents.
Direct
Public opinion polling as a way of making certain that lawmakers act in the interest of their constituents or their voting base, funders. Effects elected officials. Direct rewards (or punishments)
Organized Interest Groups
Public opinion is organized around specific issues on behalf of special interest groups for interest groups
Public Opinion Polls
seek to determine the aggregate view people hold in a community on current important issues
Pollsters
Gallup, Harris, Yankelovich and Sindlinger, Opinion Research Corporation, Roper and Cambridge Reports
Criticisms of Social Science
1)Social science is basically concerned with the prediction of future events, where as the purpose of the law is to order them
2)Social science is rarely dispassionate and social scientists are frequently caught up in politics which their work necessarily involves
Sources of Impetus for Law
is a fundamental prerequisite for setting the mechanism of lawmaking in motion
Detached Scholarly Diagnosis
the impetus for law may come from a detached scholarly undertaking
A Voice from the Wilderness
through their writings, many people outside of academic succeed or even excel, in calling public attention to a particular problem or social condition
Protest Activity
involve demonstrations, sit-ins, strikes, boycotts and more recently various forms of electronic civil disobedience or hacktivism both in the US and abroad that drastically emphasize, often with the help of the media, a group's grievances or objectives
Social Movements
is a type of collective behavior whereby a group of individuals organize to promote certain changes or alterations in certain types of behavior or procedures
Public Interest Groups
Public interests are not as well represented as private interests (a shame really). But, there are hundreds of organizations run by big money that represent private interests. Public interests are not so lucky. Very few groups represent public. Some notable Public Interest groups are Sierra Club, The US Public Interest Research Group (Nader started) and others
Mass Media
(newspapers, magazines and radio and television stations) function in part as an interest group
Mass Media's Influence on Public Opinion
1)MM authenticate the factual nature of events, which is decisive in the formation of public opinion
2)MM validate opinions, sentiments and preferences
3)Is to legitimize certain behaviors and viewpoints considered to be taboo
4)Often symbolize the diffuse anxieties, preferences, discontents and prejudices that individuals experience
5)Focus the preferences, discontents and prejudices into lines of action
6)Classify into hierarchies, persons, objects, activities and issues
Social Control
refers to the methods used by members of a society to maintain order and to promote predictability of society
Types of Social Control
Internal
External
Formal
Informal
Internal
The majority of social control is this—we behave because we want to do so
External
relies on surveillance. If you are seen you can be punished—if you aren't seen you won't be punished
Formal
Industrial societies have increasingly relied on formal controls--societies that are impersonal need more formal mechanisms to apply control
Informal
is more effective than formal control when applied by the deviant's reference group
Informal Social Control
Are best exemplified by folkways and mores
Tend to be more effective in groups and societies where relations are face-to-face and intimate and where the division of labor is relatively simple
KGB with Little Feet
little old ladies employed by the state to monitor their neighborhoods, such as those found in China, should be considered
Formal Social Control
Usually characteristic of more complex societies with a greater division of labor, heterogeneity of population and subgroups with competing values and different sets of mores and ideologies
Arises when informal controls alone are insufficient to maintain conformity to certain norms
Criminal Sanctions
Today 1:142
In 2001 1:218 some 4.5 million on probation
8 million students are enrolled full time, if trends continue the # of Americans behind bars will match and exceed
Legalization
to describe the process by which norms are moved from the social to the legal level
Deterrence
It is the idea that a person or a group will stop committing an anti-social act if that act is punished in a way that is swift, certain, and severe.
Categories of Deterrence
Specific
Incapacitation
General
Absolute
Specific Deterrence
preventing individuals from engaging in crime or deviant by impacting their rational decision making process
Incapacitation
A subset of specific deterrence. aims to prevent future crimes not by rehabilitating the individual but rather from taking away his ability to commit such acts
General Deterrence
The aim is to create sanctions and punishments that will deter behavior in general from occurring in the future
Absolute Deterrence
Another subset of specific deterrence. It aims to prevent future crimes on the part of individuals by removing the means for committing the crime or killing the individual
Assumptions of Deterrence Theory
is predicated on the assumption that individuals weigh the costs and rewards associated with alternative actions, and select behaviors that maximize gains and minimize cost
3 Important Variable for Deterrence
1)The severity of the punishment for an offense
2)The certainty that it would be applied
3)The speed with which it would be applied
Instrumental Offenses
include burglary, tax evasion, embezzlement, motor vehicle theft, identity theft that became very popular in the early part of the twenty-first century and other illegal activities directed toward some material end
Expressive Offenses
are murder, assault and sex offenses, where the behavior is an end in itself
High Commitment
include individuals who engage in crime on a professional or regular basis
Low Commitment
a tax evader, an embezzler or an occasional shoplifter does not view this behavior as criminal and receives little, if any, groups support for these acts
Civil Commitment
laws that operate extensively, but not exclusively
2 Legal Principals for Civil Commitment
1)The right and responsibility of the state to assume guardianship over individuals suffering from some disability
2)Police power within constitutional limitations to take the necessary steps to protect society
Types of Civil Commitment
Incompetence
Incarceration of juveniles in training schools or detention homes
The commitment of chronic alcoholics and alcohol-related offenders
The commitment of drug addicts
The institutionalization, through civil law
Mala Prohibita
those who are involve in these crimes are willing participants, who, as a rule, don't complain to the police that a crime has been committed
Mala in Se
that is, evil in themselves with public agreement on the dangers they pose
3 Categories for Prostitution Arrest
1)For accosting and soliciting
2)On a charge of "common prostitution," which can be subsumed under disorderly conduct/vagrancy
3)Detention lower health regulations
Criminal Law Effect
is ineffective in controlling and preventing people from engaging in illegal gambling
White Collar Crime
are essentially crime of privilege, they of the suite rather than of the street, coined by Edwin H Sutherland
Occupational Crime
generally the benefit is for the individual who commits a particular illegal act - for example: the doctor who receives money for giving out illegal prescriptions
Corporate Crime
the nature of the violation and the fact that administrative ad civil laws are more likely to be used as punishment than the criminal law
Control of Corporate Activities
Prospective
Processual
Retrospective
Prospective
as in licensing, when control is exercised before deviant acts occur
Processual
in inspection where control is continuous
Retrospective
as when a lawsuit is brought for damages after deviance has occurred
Coercive Social Control
to deal with crime, enforce the law and keep social interaction peaceful and orderly; the gov't is expected by the citizens, and is required by law, to protect life and property and to arrest the perpetrators of illegal activities
Licensing
is justified as protection for the public against inferior, fraudulent or dangerous services and products
Inspection
a way of monitoring ongoing activities under the jurisdiction of a particular agency
Publicity as Social Control
doesn't work in an industrial society for individual deviance