A response paper communicates your intellectual reactions to one or more books, ideas, or events. For this response paper, your job is to pick a theme from the book that you can relate to course material to give an intellectual response and analysis of the book. For example, a response paper on the bookJust Mercymight start with overview of the book and its context, but then choose to focus on the writer’s concern about the problems inherent in juvenile sentencing, or the specific case of Walter McMillian
Once you have read the book well and taken notes, review your notes carefully. Can you identify patterns in your notes? What you are looking for is your theme. Since you can’t possibly respond to every idea in the book in the limited number of pages, you will have to be selective here and choose the most important and most interesting ideas to which you will respond.
You will probably find that you could write several response papers. This is intentional! The project is designed so that you can write on a theme that you identify that you want to learn the most about or that resonates most with you. Do not try to write on every theme. Pick one theme and write a great paper.
1. Title page.This identifies the paper as yours and provides a descriptive title that gives the reader a hint of what your paper is about (hint – do not use ‘Just Mercy: A Reaction Paper’).
2. Introduction.Identifies major theme(s) of the book and your intellectual reaction to them. Typically, this is accomplished in a paragraph starting broadly and ending with your identified theme.
3. Body.Systematically addresses your areas of agreement and disagreement with the author(s), giving reasons, facts, and examples from both the course and the book. Be specific and detailed. The evidence should be connected to your major theme, established in the introduction. You may compare and contrast authors/theories/etc based on your major theme. Be sure to cite the page and the source (of either the book or text) when you are using specific ideas or quotes.
4. Note that your personal beliefs, if they are to be considered valid, must be supported by facts and logic.You may not simply say “Sentencing juveniles to life in prison is wrong” or “Sentencing juveniles to life in prison is right”. If you want to state that this topic is right or wrong, you must give the reader facts and logic that lead the reader to that inescapable conclusion. If you cannot back up a statement with facts and logic, leave the statement out of the paper.
5. Conclusion.Summarizes your reaction and sets out your ideas about the significance of the book and its implications.
6. 5.References.A good writer always gives credit where credit is due. Make sure to cite your sources in text (in any style you prefer). Then, list the sources you used on an additional page tacked on to the end of your paper.
Unit 3
Critical Race Theory
⁃ Draws on legal scholarship, sociology, Black Feminist Theory, economics, and philosophy to raise questions about the construction of race in the US and other modern societies.
⁃ A framework that provides a race-conscious approach to understanding issues like structural racism
⁃ Race cannot be understood without considering how law has constructed race and subordinated people of color.
⁃ Racism is not the work of extremists, but instead is a socially constructed concept that is built into the structure of our society.
Five basic tenants of critical race theory
1. Racism is ordinary and not aberrational
⁃ Concerned with questions of discrimination, oppression, difference, equality, and lack of diversity (especially in the legal profession).
2. Interest convergence: BIPOC individuals achieve civil rights victories when white and minority interests converge
⁃ For that brief moment in time the interests of the black indigenous people of color converged with the majority, converged with the interest of the elite whites
3. Race is a social construct: Race and races are products of social thought and relations. They are not objective, inherent, or fixed; they correspond to no biological or genetic reality.
⁃ Physical differences take on social significance in society, resulting in unequal treatment of minority racial or ethnic groups in society
⁃ While skin color tends to denote race in American society, the more significant aspect is the importance that the members of society ascribe to skin color – in historical contexts, social interactions, law, etc.
⁃ Tend to use skin color in our society as a way to distinguish people according to race.
4. Intersectionality and anti-essentialism: no person has a single identity; people, experiences, and perspectives must be considered in light of these multiple identities
5. Unique voice of color: Because of their different histories, experiences with oppression, BIPOC writers, thinkers, and scholars may be able to communicate matters White writers, thinkers, and scholars, are unlikely to know.
⁃ Focuses on the experiences/narratives of BIPOC
Becomes extremely important to amplify and to consider the experiences and voices when we talk about critical race theory
When we try to interpret the experiences of people of color through maJority lenses End up not losing some of the significance / notseeing parts of importance of their experiences as a person of color.
Basic Tenants
Attempts to locate problems beyond traditionaldoctrine
⁃ Racism is not only a matter of individual prejudice, but a phenomenon that is deeply embedded in language and perception
⁃ Unconscious racism is often ignored by the legal system
⁃ Freedom from racism is possible through reason and efforts to separate legal reasoning and institutions from their roots
Methods/tenants not fully tested in traditional social scientific ways – but this is also a strength
Growing movement – more work should expand tenants
Other Critical Perspectives
Queer Legal Theory
⁃ “focuses on the manner in which heterosexuality has, silently but saliently, maintained itself as a hidden yet powerfully privileged norm; and an implicit, if not explicit, questioning of the goals of formal equality that, on their face simply reify the very categories that have generated heterosexual privilege and queer oppression…..” (Kepros,1999/200, p. 284)
⁃ In legal thought queer theory has been used to challenge some of the accepted categories of law, especially regarding relationships, the family, employment, property
⁃ Bostock v. Clayton County (2020)
⁃ Three cases in which an employer fired a long-time employee for being homosexual or transgender
⁃ Clayton county Georgia fired Gerald Bostock for conduct on becoming a county employee shortly after he participated in a gay softball league
⁃ Donald Zaria brought a women on a jump. Women did not want to be strapped to him but he told her don’t worry I’m gay. Fired a few days later for being gay
⁃ Harris funeral homes fired Amy Stevens who presented as male when she was hired and after she informed employer that she planned to work as a women transgender. Fired for being gay.
⁃ Title VII makes it ‘unlawful for an employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual… because of an individual’s race, color, sex, or national origin’
⁃ Does discrimination based on a person’s status as LGBTQ constitute sex discrimination?
⁃ Because discrimination on the basis of LGBTQ+ requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally personalizes an employee for being [LGBTQ+] violates Title VIl…Just as sex is necessarily a but for cause when an employer discriminates against [LGBTQ+], an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.
Intersectionality Approaches
⁃ People are situated in different locations in the social structure hierarchy – these positions are related to advantages and disadvantages
⁃ Understanding one, two, or more social positions individuals is an incomplete understanding
⁃ The whole is greater than the sum of the parts
⁃ Most often used to analyze race along w/ other social positions – gender, class, sexuality.
⁃ Kimberly Crenshaw – coined the term intersectionality
⁃ When facts do not fit with the available frames, people have a difficult time incorporating those facts into their way of thinking about a problem
⁃ When there’s no name for a problem, you can’t see the problem.
⁃ Is there race discrimination? Is there gender discrimination? Neither African American men nor white women needed to combine these two questions to explain their experiences.
⁃ Intersectionality accounts for something in addition to ones singular identities. Its not enough to just consider one identity but the product of those identities.
In the ruling, the court said that LGBTQ people were protected at wrk bc but for their sex, they would have not been fired.
Basic Choices
Justice William Blackstone
⁃ Judge in England in the 1760s
⁃ Included this ratio in treatise the Commentaries on the Laws of England: “It is better than 10 guilty persons go free than one innocent person suffer”
⁃ If a person is found guilty but is not that’s an error and other way as well.
Rights of the Individual VS Society as a Whole

⁃ The law functions to protect both of these rights.
⁃ e.g., the law should both protect citizens from crime, but also protect the accused from an unfair trial
⁃ However, what is best for the individual or seems a logical right is not always best for the common good
⁃ Through time, the tension between these two rights is illustrated in legal decisions
⁃ Miranda v. Arizona, 1966
⁃ court decided that rights should be read to the suspect when the suspect is detained and question. What Miranda v arizona found is that the avg person likely isn’t aware their rights in the criminal justice system. Have to make sure that we inform them of their rights when those rights become pertinent to protect the individuals legal rights.
⁃ Taken the decision that was weighed towards right of individual and became more toward society as a whole.
⁃ The courts do not permit anticipatory invocations: suspects cannot invoke the Miranda rights unless they were in custody at the time and the invocation occurred during actual or pending investigation.
⁃ Idea behind this is in response to a series of situations in which it wasn’t clear whether Miranda was correctly invoked for a suspect.
⁃ E.g. Bobby vs Dickson:
⁃ Murder suspect walked into police station in Ohio to retrieve his car after it was towed for traffic violation.
⁃ Homicide detective happened to see him and the detective decided to use the opportunity to question him about the murder.
⁃ Dickson refused to answer q unless lawyer present; thought he was invoking Miranda rights
⁃ Few days lter, detective developed probable cause and Dickson was arrested. Detective mirandized (Miranda was waved) Dickson, made incriminating statement.
⁃ Question of court was whether Dicksons first invocation of Miranda rights invoked that right to council for post arrest.
⁃ Court said statement was attained in violation of Miranda since Dickson invoked right to council during police station.
⁃ Supreme Court overturned since it was plainly wrong; obvious he wasn’t in custody during his chance encounter with detective.
⁃ Miranda cannot be invoked prior to being in custody.
⁃ Reflective of two competing models of criminal justice (Packer, 1964)
1. Due Process Model: places the primary value on the protection of citizens from possible abuses by the police and law enforcement system generally.
⁃ Assumes the innocence of suspects
⁃ Accounts for the human error in the criminal justice process
⁃ Fairness over efficiency
⁃ ” Insistence on formal, adjudicative, adversary fact Finding processes in which the factual case against the accused is publicly heard by an impartial tribunal and is evaluated only after the accused has had a full opportunity to discredit the case against [them]” (packer)
2. Crime Control Model: Seeks the punishment of lawbreakers, emphasizing the efficient detection and detention of suspects and prosecution of defendants so that society can be assured that criminal activity is being contained or reduced
⁃ Repression of criminal conduct is the most important function in the criminal justice process
⁃ Efficiency: “The capacity to apprehend, try, convict, and dispose a high proportion of criminal offenders whose offenses become known”
⁃ Early determination of probable guilt or innocence
⁃ Presumption of guilt, meaning a complex of attitudes toward the case
⁃ E.G. Californias three strikes law: idea is that if you are found guilty of a third felony, receive triple the regular sentence to life in prison. No matter what punishment.
⁃ “If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of it’s successive stages is designed to present formidable impediments to carrying the accused any further along in the process.. (Packer, 1964)
⁃ How do we protect both the rights of individuals and rights of society as a whole knowing that these two rights need to be held in balance?
Kaylor 2014
⁃ Uses Packer’s Crime Control and Due Process models to evaluate the policy debate about evidence exclusion at trial (stemming from the 4th Amendment)
⁃ Exclusionary Rule: designed to prevent the prosecution from introducing evidence obtained in violation of a defendant’s constitutional rights.
⁃ Evidence has to be obtained fairly in order to be introduced at trial.
⁃ Fruit of the poisonous tree doctrine: evidence is inadmissible when a defendant can demonstrate a causal connection between the evidence and a prior rights violation.
⁃ Analysis illuminates the values underlying the ebb and flow of evidentiary rules
The adversarial system
⁃ The feature of the U.S. legal system that is most fundamental to its definition, operation, and character is its central tenet: that conflict resolution is best achieved through an adversary process
⁃ Relies on the skill of the different advocates representing the parties’ positions and not on a neutral party
⁃ Assumes three things:
⁃ Those who the dispute affects should be responsible for making their arguments
⁃ The biases of self-interest.
⁃ ..are necessary motivators in discovering the truth
⁃ …are offset by placing the dialogue in the courtroom (a neutral place with neutral supervision)
⁃ The conflict can take place within our system of law
Adversarial vs Inquisitorial
⁃ Adversarial System (Common Law Countries)
⁃ US, Canada, UK
⁃ Each side presents its best evidence and an independent fact-finder decides the outcome
⁃ Judges ensure due process and decide what evidence to admit
⁃ Inquisitorial approach (Civil Law Countries)
⁃ France, Germany, Spain, etc.
⁃ The judge asks the questions of the witnesses (who testify for the court) and makes a decision
A vs I: Historical Polarities
⁃ Adversarial System
⁃ Fundamental fairness is paramount – even if ‘unjust’ results occur occasionally
⁃ Belief that competitive advocacy is the best way to the truth
⁃ Individual rights may trump the truth
⁃ Inquisitorial System
⁃ Search for truth is paramount – even if unfair means are used occasionally
⁃ Belief that judicial control of a criminal case is the best way to the truth
⁃ The truth may override individual rights
Role of Attorneys
⁃ Adversarial
⁃ Active, responsible for producing evidence and questioning witnesses
⁃ Act as an extension of their client
⁃ Prosecutors and defense attorneys are more partisan, competitive
⁃ Inquisitorial
⁃ Less active, less responsible for developing evidence
⁃ Prosecutors and defense attorneys less partisan, mainly aid in the search for truth
Role of Judges
⁃ Adversarial
⁃ Passive; not actively producing evidence, or asking witnesses questions. Instead, regulating the procedure in the court room and ensuring that the fundamental fairness value is met in the court room. Due process rights not violated and everyone gets a fair shot.
⁃ Like umpires or referees; not responsible for ‘investigating’ truth
⁃ Inquisitorial
⁃ Active; plays active role in both constructing truth and making a decision in the final outcome of the trial.
⁃ Considered the ‘examining magistrate’; responsible for developing truth.
Roles of Parties and Witnesses
⁃ Adversarial
⁃ More party control of disputes and less intervention
⁃ More oral testimony
⁃ Short questions and answers
⁃ Inquisitorial
⁃ Less party control of disputes; more control by judge
⁃ More written testimony
⁃ Long narratives
Rules of Evidence
⁃ Adversarial
⁃ Stricter, more complex rules of evidence
⁃ More exclusionary rules to control police, prosecutors, and judges
⁃ Presented to laypersons
⁃ Inquisitorial
⁃ Fewer, more lax rules of evidences
⁃ More discretion for judge and governmental decision makers
⁃ Presented to jurists
Rights of the accused
⁃ Adversarial
⁃ More due process rights
⁃ Right to remain silent; may not be able to question the accused
⁃ More privacy rights
⁃ Model weighted toward due process; protect society by protecting individuals from excessive governmental interference
⁃ Presumption of innocence
⁃ Confessions end investigation
⁃ Inquisitorial
⁃ Fewer due process rights
⁃ May be a non-incrimination right; can ‘inquire’ of and question the accused
⁃ Fewer privacy rights
⁃ Model weighted toward crime control; protect society by granting more power to governmental officials
⁃ Presumption of cooperation; talk to attorneys, police officers
⁃ Confessions entered as evidence; the judge still spends a lot of time constructing other pieces of evidence or other versions of the truth.
Advantages and critiques of systems
Advantages of the adversarial system
⁃ Both parties investigate the case; get “both sides of the truth’
⁃ Trial lawyer has ample opportunity to uncover truth
⁃ Motivates each party to put forth efforts to find truth and persuade the fact finder in a competitive trial
⁃ Promotes more respect for individual rights
⁃ Formal rules preserve an equal playing field; assume fair administration of justice
⁃ Less removed from the average citizen
⁃ Trial by jury – better than the government paid agent
⁃ Because cases in the adversarial system are resolved by plea bargaining/settlement, the above criteria are called into question
Advantages of the inquisitorial system
⁃ One investigation of the case
⁃ Brings investigation of cases before a detached magistrate – avoids overzealous detectives and prosecutors
⁃ Promotes more respect for individual duty, responsibility and security of society as a whole
⁃ Informal and less complicated process assures efficient administration of justice
⁃ Panel of judges or government paid agents are less biased than the average citizen
Critiques of Adversarial
⁃ Truth suffers when rights become obstacles (e.g., to investigation, exclusion)
⁃ Complex rules of evidence are difficult for laypersons to understand
⁃ Investigative work is left to partisans
⁃ The judge has too little power
⁃ Trials become length, process is slow, backlog develops
⁃ Backlog discourages trials, huge pressure to plea bargain
⁃ Excess law and unequal resources give more justice to wealthy
⁃ Desire to assure fair means may lead to unjust ends
Critiques of Inquisitorial
⁃ Fairness suffers when duty to the court overrides individual rights and privacy
⁃ Lack of rules of evidence give too much discretion to judges; they may be prone to biases
⁃ Investigative work is left to government
⁃ The judge has too much power
⁃ Trials become ‘showcases’, process is too efficient to be fair
⁃ Huge percentage found guilty
⁃ Excess discretion and gov control
⁃ Desire to assure just ends may deny fair means
The Adversarial system
⁃ Criticized for promoting a competitive atmosphere that can distort the truth
⁃ Jurors have to choose between two versions of the truth, both of which are inaccurate and incomplete
⁃ However, participants feel they’ve been treated fairly
Resolving Disputes: The Adversarial System
The ethics of advocacy; Charles Curtis
⁃ talks about how the attorney is similar and diff from other types of professionals
⁃ A lawyer devoted his life and career to acting for other people. Handles other peoples troubles. Attorneys loyalty runs to his client.
⁃ The priest handles other peoples spiritual aspirations.
⁃ The loyalty of a priest/ clergyman runs to his church
⁃ The banker handles peoples money. Banker loyalty looks to his bank
⁃ Talks about how the lawyers official duty required of him by the court is to devote himself to the client. Only reason exists is because of that need.
⁃ The lawyer devotes theirselves to the interest of another at the peril of urself. Vicarious action tempts a man too far from himself.
⁃ Men will do for others what they are not willing to do for themselves because their acting on behalf of a client.
⁃ Talks about how the attorney can maintain their own sense of values or secure a detachment from the client when their asked to act and do things on behalf of the client that perhaps they wouldn’t necessarily do themselves.
⁃ Attorneys may treat the whole thing as a game. Not talking about the sporting theory of justice; rather, lawyers personal relations with his client and necessity of detaching himself from his client.
⁃ Never blame a lawyer for treating litigation as a game. However, as muchas u may blame the judge, the lawyer is detaching himself. Must stay on upland of his own personality
⁃ Sense of craftsmanship: he says perhaps comes to the same thing but not quite.
⁃ There’s a satisfaction in playing the game the best you can as their is in doing anything as well as you can which is distracting from making a good score.
⁃ The lawyer must treat the practice of law as if it were a game but if he relies on craftsmanship it may become an art.
⁃ Contextualises the role of the attorney in light of both the attorney maintain sense of value while also doing the duty required of them by the court, which is representing client as if it were themselves on the line.
The fight theory vs truth theory; Jerome Frank
I have nothing to do with justice; Martin urdman

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