Finale Blog

As the semester comes to a close the last thing I would like to discuss is Dworkin and Judge Hercules. While according to Dworkin, Judge Hercules could come to any correct decision by using law as integrity.  Dworkin's critics argue not only that law proper (that is, the legal sources in a positivist sense) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable. In any of these situations, even Hercules would be in a dilemma and none of the possible answers would be the right one. I disagree with this to a certain extent because I believe that Hercules would be establishing a just moral precedent, that could be look to in the future. At the same time I recognize that as long as a person is in an authoritative position, there is always room for the risk of fault and corruption of the values in that society

Restorative as prevention?

What if restorative justice could be used as a method of prevention?

I was on google and I came across an article about restorative justice in the school systems ... take a look at this link and tell me if you think that restorative justice could be used in this way so that it may better promote transformational outcomes. The reason I say that it would be a method of prevention is because it would be used in schools instead of after a crime/offense could be committed. Maybe this is not the case but I do think that there is something here to think about. Instead of using restorative justice after offenses are committed the government could possibly try implementing throughout facilities in society.

http://restorativejustice.com

Trumpets

The movie that we watched this week was really good. The way that Gideon petitioned his case and why. The principles established however need to be worked on. Under the sixth amendment Americans should have the right to counsel and because of Gideon v. Wainwright this is now able to occur for the most part. One thing that this doesn't completely cover is the competence of the council you are given. I have previously worked in the District Attorney's Office of New York and I was able to view some of the defense council that lacked competence and care for the case. Some of the defense attorney did not even put up the effort needed to win some cases that could have been won. As a society what could we do that could ensure that the precedent in Gideon v. Wainwright be upheld and better improved to benefit our society better?

Death means ?

My grandmother passed this past weekend and something came up in a conversation that left me rather curious. When two people are married after the spouse dies the other gets rights I understand that. But what about their actual blood family? If a person doesn't write a will but everyone knows the possessions they are supposed to get should their spouse have the right to withhold that from them because of a law? Does jurisprudence have more of a right to be upheld or does the person who knows it belongs to them have a moral obligation to take what is theirs? Should family matters even be a thing decided by law?

Mens Rea ?

Today in class we were discussing the thought of mens rea and it's position in the law. From my understanding the concept of mens rea is essentially being able to determine if the person committing the action is guilty at mind. Please correct me if my understanding is wrong. It seems to me that mens rea is needed in a society but its usage prevents the society from being progressive. For my paper what I would like my thesis to explain is why mens rea hinders our society because it does not ultimately help the individual, it leaves a continuous cycle that eventually needs to be dealt with. What suggestions do you have that can support the argument that mens rea is a double standard in society that should be subject to revisions in order to retain autonomy?

Another Swing at Epstein

After reading Epstein in class and coming together we had become a bit confused about what he meant in Philosophical Implications. On page 171 he talks about how he will show if eminent domain is a civic virtue or a injustice. Under eminent domain the government is to compensate a person for the expropriation of their private land but are not compensated for land expropriation involving zoning ordinances. Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. Epstein comes up with a normative theory that casts doubt upon the established view today that the redistribution of wealth is a proper function of government. However, he does not dismiss eminent domain, he claims that in the clause of eminent domain theory there is a theory of political obligation thats holds eminent domain superior to any rival.

Just Thinking...

I was watching this special on Discovery channel about the KKK. Named KKK:beneath the Hood. It was about some KKK members who tried to justify the actions of the KKK. They tried to say that they did not have any relation to the clans past and that they were not hate group. They just thought white supremacy to be there God given right. Then the documentary showed how they taught these traits to their children as if they were not immoral. I began to think why and isn't this considered to be brainwashing in a sense. Depriving the child of making its own interpretations on society. I googled brainwashing to see what I could find that could answer some of my unanswered thoughts and I found this:http://books.google.com/books?hl=en&lr=&id=FU_ifHrIIg0C&oi=fnd&pg=PR7&dq=brainwashing+and+philosophy&ots=6q1tovoSlC&sig=1NMTvnQo5IWkt2QMsy-1IK9KX3A#v=onepage&q=brainwashing%20and%20philosophy&f=false

Discrimination inevitable

Last night a friend and I stumbled onto the topic of Affirmative Action. She claimed it to be "bullsh*t" I on the other hand disagree with her. Understandable that it may seem like another form of discrimination or segregation but we must not forget that for certain groups in this country "equality" doesn't necessarily hold the merit. People argue things that the civil rights movement got rid of the segregation issue openly. However, those who already had set views or traditional racists already held positions of power. So what stops them from still being racist and condoning segregation subtly? Besides Affirmative action isn't just for African Americans, its for all groups that are treated unequally at one standard or another. One could argue that if such racism does exist then Affirmative Action is just a quota and it ultimately leads to discrimination. I believe discrimination in this country is inevitable at some point or another because of the various ideologies of our society.

Ideas? If we were to completely get rid of Affirmative Action do you think this would be a progressive decision?

Can Someone Clarify Me ?

Sorry for the mishap today in class, unfortunately I ate something that made me me ill. I apologize for the interruption however, I would like to be caught up on what I missed in class. When I left out we were on the subject of discrimination. From what I understand, The Supreme Court does not agree with discrimination amongst race. On the contrary, Corporate America does agree with affirmative action because it benefits them economically. In my absence did we discuss how this could be related to people being rational maximizers of their satisfactions (Posner). But where I began to get confused with is the theory of law as integrity and interpretation. I will read other blogs to review other ideas. Please comment to inform me about what I missed and others about the readings.

While in class going over Hart and Dworkin there were two questions that I had wrote down in my book that I did not ask out loud, they were:

Can a principle be equated as some form of morality? 

and 

Can a principle diverge from law and be in favor of morality?

I ask my first question because it is obvious that Hart would reject the idea of principle being a form of morality. To Hart the proper place for morality in law is in making the law not in judging it, yet when some decisions are made in cases they come to those ends by means of a moral process. So then is principle still not relevant to morality in this case?

Unlike Hart, Dworkin would rather appeal to the principle and not the rule. I came to my second question because I was looking up the term principle and words like accepted, truth, and right conduct were used to characterize the word principle. All the above terms can be in relation to morals and morality ... which lead me to ask myself where does the line between the the two stand? Which lead me to my second question. 

If you have an answer for me please provide one ... If you have your own questions or opinions to add please do so as well.

Why Cant We be Fully Heard?

If the prime purpose of the rule of law is to rule off-limits to certain deep ideas of the right or goo, how can change occur?

In the rule of law, high- level theories happen to have been taken to be too hubristic or sectarian, yet they are what is needed to implement drastic change at some point or another in a society. Civil War, the Women's right Movement, and the Civil Rights Movement are abstract ideas that fight for more than just one ideal cause although one cause may seem to be high lighted. They are not very favorable in law and yet they have helped define and ratify certain aspects of our constitution. If these rules of law were made more general and less confusing all these abstract ideas would not have to be floating around in our society to gain recognition.

Do you think our country purposely enforce these rules of law to put a veil of silence over our society? Why or why not?

All sorts needed

Reasoning from case to case may hold imperfections but what change would then occur in society if everyone followed the law as written? In order for the laws to be better efficient there should be well rounded people available to interpret or adhere to the law as is. However, if reasoning from case to case is an imperfection than solely adhering to the law is an imperfection as well. This is because it is possible that by completely adhering to the law you may ignore something circumstantial to the case and make the wrong judgement.

Personally I think that in order for the laws to be efficient there should be a balance of both kind of decision making. However I think it imperative that whoever is making the decision knows when, why and how they came to their decision.

Which method do you think could lead to a better decision; following the law as is or having the ability to interpret the law for specific situations?

Talk About Rights

The National Minimum Drinking Age Act was passed in July 1984 

This was to legislate states to make their legal drinking age 21 years old. What I don't understand however is why? If states did not comply they would be risking 10% of their federal highway funds but  why does the penalty have to be so drastic if determining the legitimacy of a law like that is a matter of the state? 

The act supposedly doesn't violate the tenth amendment claiming that the distribution of alcohol is left to the discretion of the state ... how is that possible, if a state decides not to comply they are penalized. I say that is a violation of he tenth amendment. 

It took until the year of 1988 until all states were in compliance but Puerto Rico and the Virgin Islands remained 18 and loss their highway funding. I find it odd that we are able to vote at 18 but not drink; that were allowed to fight for our country but not even able to take a sip in our honor. The US tries to mandate the laws on the legal drinking age but the truth is; people are still going to drink under the age of 21. 

Do you think it would be a good idea for the government to amend its decision on the minimum drinking age? why, why not?

Maybe its Just Me

Today in class my professor made a comment that stuck with me throughout the day. We were on the subject of rape and he mentioned that some people did not believe that rape was a crime. He told us what some thought about women and rape he said;  they said,"when a woman is raped she should just lay back and enjoy it." As a female I thought that to be very sexist, as citizen of this country I thought that to be a very demeaning statement. What if its a man? Does it make the situation different or would the saying be "when a man gets sodomized he should just bend over and take it?" I think not haha.

Before 1920, women were technically considered subhuman to men.  If they were married there husbands basically owned them.  Whatever was in the woman's name was turned over to her husband, he had custody of almost everything. Almost 100 years have passed and it is sad that people are still in the mindset that women don't have a right to themselves. Although it may be hard to persuade some that women do have a right to their body, what do you think could be some measures or precautions that females can take to make sure the security of their rights are protected from those who want to have a right over their natural rights? Or can this ever be possible for females?

WELCOME

Hey Guys,
       As the blog says I'm Helena Kemper. This is my blog for my Contemporary Law class. I am 19 years old for two more months and I aspire to have a degree in Philosophy and Fine Performing Arts in May of 2015. I took this class because law interests me and since the course said contemporary law, I figured why not learn more about present laws and theories. Hence, the name for my blog haha. Stay tuned ... There are more thoughts, ideas, questions, and comments from future discussions to come!