Foundations in Law - Benjamin A. Concannon Smith

Unit 1:
What is Law?
Mr. Concannon Smith
Do Now
1. List 10 of your daily activities (for example,
waking up, eating, etc.).
2. Next to each item, list any laws that affect that
3. What is the Purpose of each law you
4. Would you change any of these laws?
Why/why not?
Unit 1:
What is Law?
Mr. Concannon Smith
What is Law?
 Law: the rules and regulations made and enforced by a
society’s government to manage the conduct of the people
within said society.
 Every society that has ever existed has recognized the need
for laws (written or unwritten)
 This does NOT mean all laws are “fair” or “good”
 A democratic system of govt. (like ours) cannot function
unless the laws are respected by the people they are intended
to regulate.
 Society must be based on the “rule of law”
 Rules should be known in advance and created democratically
 Nobody is above the law (example: Nixon)
Laws and Values
 Laws generally reflect and promote societal values (traditional
ideas about right and wrong)
 Not everything immoral is illegal (ex. lying to a friend)
 Goals of the legal system according to legal scholars:
Protecting basic human rights
Promoting fairness
Resolving conflicts
Promoting order/stability
Promoting desirable economic and social behavior
Representing the will of the majority
Protecting the rights of minorities (non-racial usage)
Value-laden Law Examples
1. Moral Values: Right and Wrong
 Murder = primary moral value of protection of human life
2. Economic Values: accumulation, use of, and dist. of wealth
 Tax laws = encourage people to own a home (tax benefits)
 Shoplifting laws = protect property and discourages stealing
3. Political Values: relationship between people an government
 Voting holidays = easier for citizens to participate in elections
 Anti-corruption laws = keep public trust in elected officials
4. Social Values: broadest category, issues important to society
 Public education = country’s best interest to educate youth
Social Contract Theory
 In a nutshell:
 The voluntary agreement to limit our own rights
and freedoms to a government in order to
maintain social and political order
 The degree to which we submit to this agreement
is constantly under debate
 Social contract on the day to day:
 Ranges from stop signs and speed limits to the
Patriot Act
 Can you think of any others?
Do Now
 What do you think it means to have
a right? (what is the meaning of a
 Are you born with any basic rights,
and if so what are they?
 Where did they come from?
 Are there some rights that are more
important than others?
Mr. Concannon Smith
Human Rights
 Human Rights: the rights all people have simply because they
are human.
 The Universal Declaration of Human Rights (UDHR) is a
statement of basic human rights and acts as a set of standards
by which nearly every country in the world follows.
 Developed by the UN under Eleanor Roosevelt in 1948
 Basic UDHR rights: Liberty, Education, political and religious
freedom, and economic well-being
 UDHR also bans torture
 The UDHR is not a binding treaty but many ideals in the
UDHR have been ratified in treaties
Rights vs. Responsibility
 Human Rights can be used by countries when writing laws
 Rights are codified by signing HR treaties, amending the
Constitution, or passing laws specifically aimed at a HR issue
 Some criticize the “over-codification” of rights in the U.S.
 If we consider trial by jury a right, we shouldn’t complain
about serving on a jury
 If we want a government for the people & by the people, we
should actually get out and vote
 Further criticism…just because we have first amendment rights
doesn’t mean saying hateful things is morally correct
 Striking the correct balance between right & responsibility is
Kinds of Laws
Mr. Concannon Smith
Two Major Categories
Criminal Law
 Regulates public conduct
and sets out duties owed to
 Can only be brought by
the govt. against a person
charged with committing a
 Offenses divided into
felonies and misdemeanors
 Penalties: incarceration,
probation, fines
Civil Law
 Regulates relations
between individuals or
groups of individuals
 Examples: marriage,
divorce, contracts,
insurance, car accidents
 A civil action is a lawsuit
brought by a person who
feels wronged or injured by
another person
 Penalty: recovery of
Important Distinctions
 A criminal case is brought by the government against a
 A civil case is brought by a plaintiff against the defendant.
 In a CRIMINAL CASE, the burden on the prosecution is to
prove the guilt of the defendant beyond a reasonable doubt
 In a CIVIL CASE, the plaintiff wins by convincing the judge
or jury by a preponderance of the evidence
These are called standards of proof
 Why do you think the standard of proof is lower in CIVIL
Our Constitutional
Mr. Concannon Smith
Must Know Basics
 The U.S. Constitution is the highest law of the land.
 Sets the framework, powers and limitations of
 Limited Government is the fundamental notion in the
 Logically so, given the history
 The Separation of Powers is perhaps the most important
component of the Constitution
 Three branches: Executive, Legislative, and Judicial
 Checks and Balances: designed to ensure that one
branch cannot rule supreme over the others
Judicial Review
 The Court’s power to declare unenforceable any law
passed by Congress or a state that conflicts with the
 In general SCOTUS can declare a law unconstitutional
1. govt. has passed a law that the Constitution does not give
it power to pass
2. govt. passed a law that violates somebody’s rights
 SCOTUS can also declare an Executive Act
1. Can strike down regulations issued by executive branch
Is there any potential weakness in this power?
 defined: the division of power between the
federal government and the states
 (remember: the federal govt’s power to
make law is written explicitly in the
Constitution, the remaining powers are left
to the states)
 Since states have their own power to make
laws, many states have different laws
regulating the same behaviors/crimes/etc.
The Bill of Rights
 The first 10 Amendments to the Constitution
 They define and guarantee the fundamental rights
and liberties of all Americans.
 These include but are not limited to:
 Freedom of religion
 Freedom of speech and press
 Freedom from unreasonable search and
•US citizens obey three main sources of law (federal,
state, and local).
•Legislative bodies in each category make the laws.
•In some situations laws can be made directly by
voters, and in other courts can set law by ruling on
Do Now
 Decide whether each of the following is a federal, state, and/or a
local law:
A. No parking on the east side of Main St. between 4 and 6 pm.
B. All persons between the ages of 6 and 16 must attend school
C. Whoever enters a bank for the purposes of taking by force or violence
the money from said bank shall be fined not more than $50,000 or
imprisoned not more than 20 years, or both.
D. In order to sell any product on the public streets a vendor must first
apply for and receive a vendor’s permit
E. No employer of more than 15 persons may discriminate on the basis
of race, color, religion, sex, or national origin
F. All persons traveling on interstate airlines are subject to search before
entering the plane prior to departure
 Federal level: Congress divided into two houses (HOR and
 Laws passed at this level are binding in every state (called statutes)
 Deal with issues of national impact: environment, public health,
national defense, labor relations, civil rights, federal taxes
 State level: state legislatures (most of which are bicameral also)
operate the same way and make laws that are only binding within
their boundaries.
 State statues deal with statewide issues: education, transportation,
state taxes, marriage, most criminal laws, the power of state officials
 City/Town level: pass laws known as ordinances
 Local issues: land use, parking, schools, etc.
Drafting a Bill
Mr. Concannon Smith
Drafting a Bill
 Many drafts are written before bills are formally introduced
and discussed by a legislative body
 Despite such efforts, interpretation can become an issue
 This violates a basic principle of law (people knowing the law)
 Thus CLARITY is key when drafting bills: the checklist
Is the law written in clear language?
Is the law understandable?
When does the law go into effect?
Does the law contradict any other laws?
Is the law enforceable, and if so by whom?
Are the penalties for breaking the law clear and reasonable?
Your Lawmakers
Mr. Concannon Smith
Do Now
 Federal Level:
 Can you name who represents Massachusetts
in the House of Representatives for your
 How about our two Senators?
 State Level:
 State Representative
 State Senator
Truancy Law 7/1/2014
 Chapter 76, section 1 of the Massachusetts General Laws
states that all children between the ages of six and sixteen
must attend school. A school district may excuse up to
seven day sessions or fourteen half day sessions in any
period of six months. In addition to this law, each school
may have its own attendance policy with which
parents/guardians should be familiar.
Inducing Absences
 It is a crime to induce or attempt to induce a minor to miss
school, or unlawfully to employ or to harbor a minor who
should be in school.
CJ in your District
Harriet Chandler (D)
 Bill concerning teaching
health in schools
Kimberly Ferguson (R)
 Bill concerning the
insanity defense for
Analyzing Bills
Chandler: Teaching Health
Ferguson: Criminally Insane
 When was the bill
 When was the bill
 What change is it trying to
 What change is it trying to
 Provide evidence from the
 Provide evidence from the
 Why do you think the Senate
 Why do you think the House
 Do you agree with this bill?
 Do you agree with this bill?
is concerned about what goes
on in a high school health
Explain why/why not…
is concerned about the
permanent criminal record of
those who pleaded insane?
Explain why/why not…
Advocacy in Law
Lobbying Webquest
Mr. Concannon Smith
 Defined: the active support of a cause.
 Advocates try to persuade others to support the
same cause
 Advocacy (done well) is based on:
 Gathering of facts
 Developing outreach and communication
 An effective plan and timeline
 Determining the level of government
responsible for the targeted legal changes you
hope to make
 Defined: a way to influence the lawmaking process by
convincing the lawmakers to vote as you want them to vote.
 17th century roots: interested persons had to wait outside
political meetings until the politicians came out (in the lobby)
 Lobbying today carries a negative connotation, but is actually a
protected Constitutional right.
 Free speech, freedom of assembly and press
 A lobbyist, is someone who works for an interest group to sway
legislation by convincing lawmakers to vote in their interest
 You can lobby as an individual or as a group: write letters,
protest, start a petition, phone-call campaigns, email, etc.
What is Crime?
Mr. Concannon Smith
What is Crime?
 An act becomes a crime when it meets the
legal definitions that designate it as such
 Simply stated: it is an wrongful act against
society––proclaimed by law––and is
punishable by society.
The Consensus Model
 Rests on the assumption that members of society form a
basic agreement with regard to norms and social values
 Those members whose actions deviate from the norm
pose a threat to the well being of society as a whole 
 Laws are passed to control & prevent deviant behavior
 Underlying assumption: a diverse group of people can
have similar morals (sharing ideas about what’s
 as public attitudes toward morality change so too do
The Conflict Model
 Rejects the consensus model on grounds that in the US,
moral attitudes are not constant or consistent
 Different groups of citizens hold widely varying opinions
on issues of morality and criminality: abortion, war on
drugs, gun control, voter ID, immigration, same sex
marriage etc.
 The Conflict Model holds that the most politically
powerful segments of society (based on class, income, age,
& race) have the most influence on criminal law
 Consequence: this group imposes their values on the
rest of the community
 This changes with whatever group comes to power
Criminal v. Deviant
 Deviance is simply behavior that
does not conform to the norms of
society (very subjective)
 Deviant acts become crimes only
when society as a whole (through
its legislatures) determine that
such acts should be punished.
Types of Crime:
Six Major Categories
Mr. Concannon Smith
1. Violent Crimes
 These crimes dominate public perspectives on crime
(considered the most heinous offenses)
 Examples include:
 Murder: unlawful killing of a human being
 Sexual Assault/Rape: coerced actions––sexual in nature––
against an unwilling participant
 Assault and Battery: two separate acts
 Assault: threats on another person of physical harm (perceived
 Battery: physical attack on another individual
 Robbery: taking of funds/personal property by means of force
 These crimes are classified by degree  more on this later…
2. Property Crime
 Most common form of crime
 Larceny (theft): pocket picking, shoplifting, or
stealing property not accomplished by force
 Burglary: act of unlawfully entering a home or
structure with the intent of committing a
crime like theft (usually a felony)
 Arson: malicious and intentional burning of a
home, automobile or other structure
3. Public Order Crime
 Behavior labeled criminal because it is
contrary to shared social values (think
Consensus Model)
 Sometimes called Victimless Crimes (however
 Examples include:
 Public drunkenness, gambling, illicit
drug use, prostitution, disturbing the
peace, loitering, etc.
4. White-Collar Crime
 Business related crime: an illegal act––carried out
non-violently––against individuals or other
businesses to obtain a personal or business
 Examples include:
 Embezzlement: using position in company to
steal funds from the company
 Tax Evasion: underreporting or not reporting
taxable income
 Fraud: Credit Card, Check, Securities (stock
market), consumer fraud (counterfeits), insurance
5. Organized Crime
 Illegal acts by illegal organizations usually
geared toward satisfying the public’s demand
for unlawful goods/services
 Conspiratorial in nature.
 Criminal tactics include (but certainly not
limited to) violence, corruption, intimidation,
fraud, trafficking (both narcotics and
 All for economic gain and power
6. High-Tech Crime
 Newest variation on crime
 Examples of Cybercrime:
 Selling illegal porn
 Soliciting minors
 Defrauding consumers
 Embezzlement
 Cyber security attacks
The Criminal Justice Process
Mr. Concannon Smith
Law Enforcement
 Local and County Law Enforcement
 Responsible for the “nuts and bolts” of law enforcement.
 State Law Enforcement
 Generally, there are both “state police” and “highway patrols.”
 Federal Law Enforcement: Operates throughout the U.S.
The Courts
 The U.S. has a dual court system. (two independent
judicial systems)
1. Federal system (federal laws)
2. State (state laws) + Washington D.C.
 Technically we have 52 different court systems
 Criminal Courts in each system determine the
innocence or guilt of criminal suspects within their
individual jurisdiction
The Criminal Justice Process
The Criminal Justice Process
 An orderly progression of events through a process comprised
of agencies working together.
 Herbert Packer compared the idealized criminal justice process
to an assembly line.
 The line is constantly at work and faces congestion!
 Partial solution is discretion:
 Authority to choose alternative courses of action
 All facets of the system employ discretion to maximize use of
limited resources
 The informal criminal justice system: flexible and conditional
The CJ Process: Day 2
Mr. Concannon Smith
The Wedding Cake Model
 Discretion comes to bear depending on the relative
importance of a particular case
1. “Top” layer consists only of a handful of celebrity
2. Second layer consists of “high profile” felonies
3. Third layer consists of “ordinary” felonies
4. Fourth layer consists of misdemeanors
Top layer distorts our view of the system
Over 90% of criminal cases (including felonies) are
settled OUT OF COURT
Competing Values of the System
Crime Control
 The most important
function of system is to
punish and repress criminal
 Law enforcement must be
counted on to control
criminal activity
Due Process
 Focus on protecting the
rights of the accused
through legal constraints on
police, courts, and
 Strives to make it more
difficult to prove guilt
 The system should function
 Fairness, not efficiency, is
efficiently, as an assemblyline
the goal of the due process
Careers in CJ
Crime Scene Photographer
Criminal Justice Today
Mr. Concannon Smith
Major Issues Today
 Community Relations & Law
Think Ferguson, MO
 The Scourge of Street Gangs
Chicago, LA, NYC, ATL
 Gun Sales and Gun Control
Think Sandy Hook
 The Illegal Drugs Problem
Think marijuana in Colorado
Policy Quandaries
 Crime and Punishment
 The Growing Prison Population
 The Economics of Incarceration
 The Death Penalty in America
 Homeland Security and the Threat of
 The Patriot Act
 Technology: Fighting and Fueling Crime
Gang Problems
 Approx. 33,000 violent street gangs, motorcycle gangs, and
prison gangs with about 1.4 million members are criminally
active in the U.S. today.
 Many are sophisticated and well organized
 all use violence to control neighborhoods and boost their illegal
money-making activities, which include robbery, drug and gun
trafficking, fraud, extortion, and prostitution rings.
 Gangs are responsible for an average of 48% of violent crime
in most jurisdictions, and up to 90% in others.
 The FBI w/ local and state police to disrupt and dismantle
gangs through intelligence-driven investigations
Reading on Chicago Gun

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