'Judge Posner's pragmatism is strongly antiformalist; he believes that conventional tools of doctrinal legal reasoning neither compel results nor sharply limit the scope of rational argumentation. " He is highly empirically oriented, with the goal of producing those legal rules and decisions that are best for society."
Posner's shift over time, from a wealth-maximizing economist to a legal pragmatist (with wealth maximization as a prominent pragmatic goal), is by now well documented.'
As stated below, precedence whether in following one client's case or following judicial rulings over time DO lend assurance in the legal system. The American or European people elect pols that appoint to the court and we do not expect rulings from say the 1960s to simply disappear or for that matter the entire 20th century. This is what has removed us from our US Constitutional rights and Federal, state, and local legal precedent to what a global corporate tribunal and global court sees as law and that is MAXIMIZING WEALTH. The US Constitution was centered on wealth generation in America and that is why it has anti-monopoly laws----1% Wall Street and their pols are simply ignoring this and MOVING FORWARD to global 1% wealth maximization. This negates our entire government structure of Congress as legislation-----Courts as judicial -----Executive branch with WE THE PEOPLE as citizens voting for who all these people are. 1% Wall Street have tied each to that global corporate tribunal so a governor works for a global corporation like UnderArmour and not for a local economy in Baltimore. The courts are no longer tied to public justice they have moved to global law and we see no justice from our courts.
ALL OF THIS CAN BE REVERSED SINCE IT IS ILLEGAL AND UNCONSTITUTIONAL EASY PEASY---JUST GET RID OF GLOBAL WALL STREET POLS.
Lex et Scientia 2009
JURISPRUDENCE AND THE JUDICIAL PRECEDENT OF THE EUROPEAN COURT OF LAW AS SOURCES OF LAW
Iulia BOGHIRNEA,Elise VA LCUKeywords: European Court of Justice , jurisprudence , judicial precedent , sources of law , Curtea European de Justi ie , jurispruden , precedent judiciar , izvoare ale dreptului
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The positive influence of the constant court’s practice is not only over the lower courts but, also, over the litigants, but in terms of predictability of law, confidence in the justice, stability, accessibility to justice, who, knowing the solution given in a similar case, complies with and submits before the presumed sentence, without reaching the court, thus reducing the uncertainty and helping those who reach to the courts to plan their activities with a minimum of risk. Previous records have almost equal importance with the law for parties in dispute to have a treatment applied by the courts in administering justice and to provide the results of judicial review.
'While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent',
We have discussed often the current 1% Wall Street pols moving to ignore MAGNA CARTA-----that is our centuries-old legal standard giving WE THE PEOPLE equal protection under law. What we are seeing is only the rich and their corporations able to access Rule of Law. Obama and his US Justice Department have pretended to throw some civil rulings out but that is why they are totally ignoring our rights as citizens and public justice----
COMMON LAW HAS ALWAYS FOLLOWED PRECEDENT IN LEGAL RULINGS----TODAY THE US COURTS ARE IGNORING PRECEDENCE AND MOVING TO GLOBAL TRIBUNAL COURT PROCEDURE.
The Common Law and Civil Law Traditions
Woodcut of a court scene from Praxis criminis persequendi, Jean Milles de Souvigny, 1541. The Robbins Collection.
Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, that sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states.
To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons, and one of the most fundamental ways in which they diverged was in the establishment of judicial decisions as the basis of common law and legislative decisions as the basis of civil law. Before looking at the history, let’s examine briefly what this means.
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
The following sections explore the historical roots of these differences.
Historical Development of Civil Law
Mosaic of Emperor Justinian I, 6th CE. Basilica of San Vitale, Ravenna, Italy.
The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or citizens. Its origins and model are to be found in the monumental compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE. While this compilation was lost to the West within decades of its creation, it was rediscovered and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came to be known as Corpus iuris civilis. Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Medieval scholars of Catholic church law, or canon law, were also influenced by Roman law scholarship as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church, an institution central to medieval culture, politics, and higher learning. By the late Middle Ages, these two laws, civil and canon, were taught at most universities and formed the basis of a shared body of legal thought common to most of Europe. The birth and evolution of the medieval civil law tradition based on Roman law was thus integral to European legal development. It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists, and it held out the possibility of a comprehensive legal code providing substantive and procedural law for all situations.
As civil law came into practice throughout Europe, the role of local custom as a source of law became increasingly important—particularly as growing European states sought to unify and organize their individual legal systems. Throughout the early modern period, this desire generated scholarly attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with rational principles of civil law and natural law. Emblematic of these attempts is the Dutch jurist Hugo Grotius’ 1631 work, Introduction to Dutch Jurisprudence, which synthesized Roman law and Dutch customary law into a cohesive whole. In the eighteenth century, the reforming aspirations of Enlightenment rulers aligned with jurists’ desire to rationalize the law to produce comprehensive, systematic legal codes including Austria’s 1786 Code of Joseph II and Complete Civil Code of 1811, Prussia’s Complete Territorial Code of 1794, and France’s Civil Code (known as the Napoleonic Code) of 1804. Such codes, shaped by the Roman law tradition, are the models of today’s civil law systems.
Historical development of English Common Law
Originally issued in the year 1215, the Magna Carta was first confirmed into law in 1225. This 1297 exemplar, some clauses of which are still statutes in England today, was issued by Edward I. National Archives, Washington, DC.
English common law emerged from the changing and centralizing powers of the king during the Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong. The system of writs became so highly formalized that the laws the courts could apply based on this system often were too rigid to adequately achieve justice. In these cases, a further appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind of court, the court of equity, also known as the court of Chancery because it was the court of the king’s chancellor. Courts of equity were authorized to apply principles of equity based on many sources (such as Roman law and natural law) rather than to apply only the common law, to achieve a just outcome.
Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century. Even today, however, some U.S. states maintain separate courts of equity. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of common law. An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority. Habeas corpus developed during the same period that produced the 1215 Magna Carta, or Great Charter, which declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land—thus establishing the right to a jury trial.
In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. Church courts applied canon law, urban and rural courts applied local customary law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did common law triumph over the other laws, when Parliament established a permanent check on the power of the English king and claimed the right to define the common law and declare other laws subsidiary to it. This evolution of a national legal culture in England was contemporaneous with the development of national legal systems in civil law countries during the early modern period. But where legal humanists and Enlightenment scholars on the continent looked to shared civil law tradition as well as national legislation and custom, English jurists of this era took great pride in the uniqueness of English legal customs and institutions.
That pride, perhaps mixed with envy inspired by the contemporary European movement toward codification, resulted in the first systematic, analytic treatise on English common law: William Blackstone’s (1723-1780) Commentaries on the Laws of England. In American law, Blackstone’s work now functions as the definitive source for common law precedents prior to the existence of the United States.
Civil law influences in American law
Sir William Blackstone, 1774, by Thomas Gainsborough. Oil on canvas. Tate Collection, London.
The American legal system remains firmly within the common law tradition brought to the North American colonies from England. Yet traces of the civil law tradition and its importance in the hemisphere maybe found within state legal traditions across the United States. Most prominent is the example of Louisiana, where state law is based on civil law as a result of Louisiana’s history as a French and Spanish territory prior to its purchase from France in 1803. Many of the southwestern states reflect traces of civil law influence in their state constitutions and codes from their early legal heritage as territories of colonial Spain and Mexico. California, for instance, has a state civil code organized into sections that echo traditional Roman civil law categories pertaining to persons, things, and actions; yet the law contained within California’s code is mostly common law.
And while Blackstone prevails as the principal source for pre-American precedent in the law, it is interesting to note that there is still room for the influence of Roman civil law in American legal tradition. The founding fathers and their contemporaries educated in the law knew not only the work of English jurists such as Blackstone, but also the work of the great civil law jurists and theorists. Thomas Jefferson, for example, owned several editions of Justinian’s Institutes, and praised the first American translated edition from 1812, with its notes and annotations on the parallels with English law, for its usefulness to American lawyers. Indeed, a famous example of its use is the 1805 case of Pierson v. Post, in which a New York judge, deciding on a case that involved a property dispute between two hunters over a fox, cited a Roman law principle on the nature and possession of wild animals from the Institutes as the precedent for his decision. Today Pierson v. Post is often one of the first property law cases taught to American law students. United States v. Robbins, a 1925 California case that went to the Supreme Court and paved the way for the state’s modern community property laws, was based upon a concept of community property that California inherited not from English common law but from legal customs of Visigothic Spain that dated to the fifth century CE. Cases such as these illuminate the rich history that unites and divides the civil and common law traditions and are a fascinating reminder of the ancient origins of modern law.
What Clinton/Bush/Obama have done these few decade is move away from our centuries-old common law and instead have filled legal rulings based on statute law. No one even sees the US or Maryland Constitution anymore in court rulings as statutes take precedence but you know what? MANY US AND STATE STATUTES ARE UNCONSTITUTIONAL AND CAN BE VOIDED AS SUCH. This means our Congress and Maryland Assembly are ignoring our US and Maryland Constitutions when passing laws. Of course these new statutes are aligned with the global tribunal court system and not with our national, state, and local sovereignty.
AGAIN, GET RID OF GLOBAL WALL STREET POLS AND REVERSE THIS EASY PEASY---IT IS ILLEGAL AND UNCONSTITUTIONAL.
What takes precedent statute law or common law?
In Local Laws, Federal Laws
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Statute law does.
We see where Posner represents the movement towards Pragmatic nilism with global corporate tribunal wealth maximization beliefs as an ANTI-FORMALIST.
'The Disrepute of Formalism'
This essay elucidates and defends legal formalism. In current academic discussion, the avowed formalist is the missing interlocutor'.
When Posner was called an ANTI-FORMALIST they were saying he does not abide by common law and therefor PRECEDENCE-----he as a judge rules beyond the strictures of common law---ergo, legal statutes at Federal and state level. Since the American people have not been able to get rid of Clinton neo-liberals are Bush neo-cons for a few decades our statutes do not reflect our US Constitution. Posner was saying in his wealth maximizing way he will abide by Federal statute and as they vote to install TRANS PACIFIC TRADE PACT----that is all Federal statute---this will be the legal standard the Federal court with judges like Posner will follow no matter if TPP is illegal and a COUP against our US Constitution.
Below you see someone back in Reagan years who saw this happening and tried to educate against it-----WE WANT FORMALISM AND RATIONALITY OF LAW. As the author says----since Reagan/Clinton the voices on law have been neo-liberal/global.
Simply said----this is why US police are guilty of unjustifiable homicide and not being charged and it is why Wall Street and corporations are fleecing our government and our pockets and not being charged or the fraud recovered-----
Copyright © 1988 Yale Law Journal Company.
Yale Law Journal
Legal Formalism: On the Immanent Rationality of Law.
97 Yale L.J. 949
Ernest J. Weinrib +
A. The Disrepute of Formalism
This essay elucidates and defends legal formalism. In current academic discussion, the avowed formalist is the missing interlocutor. Formalism is like a heresy driven underground, whose tenets must be surmised from the derogatory comments of its detractors. Everyone knows that legal formalism asserts the distinction of law and politics. The curiosity of this distinction makes formalism seem at best a pathetic escape from the functionalism of law, and at worst a vicious camouflage of the realities of power. One would not guess that formalism, properly understood and stripped of the encrustations of hostile polemics, embodies a profound and inescapable truth about law's inner coherence. My purpose here is to lay bare this truth.
The most explicit criticism of formalism is to be found in the scholarship of the Critical Legal Studies movement. 1 On the fundamental issue of whether law can in any significant sense be differentiated from politics, however, the Critical Legal Studies denunciation of formalism is merely a provocative statement of a commonly held academic belief. Rarely does one find today an espousal of what the anti-formalists labor to undermine. Most of the sophisticated writing in the United States assumes that law is a manifestation of political purposes; dispute centers on the questions of what those purposes should properly be and how they should be woven into the fabric of law. 2
My defense of formalism is an exploration of the sense in which law can, after all, ...
All of this video will be very boring to most people but please educate as to the difference in these approaches to law because we should be asking our candidates at all levels where they stand----THIS IS A REAL ISSUE. TIFs---do not matter in anti-formalist judicial rulings.
This movement from formalist to anti-formalist and tying to global corporate tribunal court and law is why Obama and states are not enforcing FEDERAL ELECTION LAWS----AND OUR ELECTIONS ARE NOW OPERATING AS DEVELOPING NATIONS-----they do not see our US Constitution driving legislative and court rulings.
You see why Clinton has the DNC sending talking points down and their corporate non-profits using these issues just so the Democratic voters have no idea what is going on.
Showcase Panel III: Formalism and Deference in Administrative Law 11-16-2013
The Federalist Society
Published on Nov 16, 2013
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is a landmark case that has changed the face of modern administrative law. This panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies' jurisdictional mandates. Should the federal courts defer or should they not defer in this context? Justices Scalia and Thomas recently differed on this issue from Chief Justice Roberts and Justices Kennedy and Alito. Who is right on this issue and why? Does the answer depend, in any measure, on the growth of the administrative state? Are there larger issues of jurisprudential philosophy at stake?
The Federalist Society's Practice Groups presented this showcase panel on "Formalism and Deference in Administrative Law" on Friday, November 16, during the 2013 National Lawyers Convention.
Below you see a statement by 1% Wall Street in 1850. They had consolidated wealth at the coming of the first Industrial Revolution and wanted to return to what was always our US formalism tied to the US Constitution. Today we have the US operating outside our US Constitution and using an anti-formalism to justify free-market globalism and extreme wealth so global pols and our Federal courts have allowed our legal process to move away from what is described below. Since Federal and state statutes have been building for global market and international law they simply allow a DO ANYTHING FOR WEALTH pragmatic nilism to exist. It goes well with SOCIAL DARWINISM. The drive over the coming decade is to have Trans Pacific Trade Pact and they hoped Trans Atlantic Trade Pact policies be passed by Congress to create a NEW WORLD ORDER global set of statutes tying the now US to all other International Economic Zones and call that THE NEW GLOBAL LEGAL FORMALISM.
IT WILL BE AN INTERNATIONAL TRIBUNAL COURT THAT CREATES WHAT IT SEES AS A NEW LEGAL FORMALISM CONTROLLING WHAT WILL BE US ECONOMIC ZONES IN NORTH AMERICA AND IT WILL NOT HAVE ANY 'WE THE PEOPLE'.
'The rise of legal formalism can be fully correlated with the attainment of these substantive legal changes. If a flexible, instrumental conception of law was necessary to promote the transformation of the post-revolutionary American legal system," it was no longer needed once the major beneficiaries
of that transformation had obtained the bulk of their objectives.
Indeed, once successful, those groups could only benefit if both the recent origins and the foundations in policy and group self-interest of all newly established legal doctrines could be disguised. There were, in short, major advantages in creating an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making "legal reasoning seem like mathematics," conveyed "an
air ... of ... inevitability" about legal decisions'.
They are now doing the same for the coming SECOND INDUSTRIAL REVOLUTION---BRINGING BACK GLOBAL CORPORATE CAMPUSES AND GLOBAL FACTORIES. This new set of global legal formalism will not recognize a US, state, or local sovereignty-----it will deal with US Economic Zones like Bloomberg International Economic Zone 2 North America under the same market laws as all other TPP nations
Int’l tribunal court seeks further arguments from PH
By: Frances Mangosing
10:48 PM December 17th, 2014
MANILA, Philippines – An international tribunal court has asked further written arguments from the Philippines on the West Philippine Sea (South China Sea) dispute after China ignored the deadline to submit a counter-memorial last December 15.
“Article 9 of Annex VII to the United Nations Convention on the Law of the Sea provides for proceedings to continue if “one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case.” Article 25(2) of the Rules of Procedure adopted by the Arbitral Tribunal further provides that –In the event that a Party does not appear before the Arbitral Tribunal or fails to defend its case, the Arbitral Tribunal shall invite written arguments from the appearing Party on, or pose questions regarding, specific issues which the Arbitral Tribunal considers have not been canvassed, or have been inadequately canvassed, in the pleadings submitted by the appearing Party,” a statement from the Permanent Court of Arbitration said on Wednesday.
China has repeatedly said that it will not participate in the arbitration case filed by the Philippines and instead would settle the dispute directly.
The arbitration case by the Philippines against China was commenced on January 2013 when the Philippines served China with a Notification and Statement of Claim “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea. Early this year, the Philippines filed a 4,000-page memorial of its position.
On December 7, China released a position paper regarding the Philippines’ appeal to international arbitration but clarified that the paper was not in participation to the arbitration. They were originally given a deadline of December 15 to answer the Philippines’ memorial.
China asserts that they own most parts of the West Philippine Sea. It is also in dispute with neighboring country with claims in the disputed seas.
“The Philippines has until 15 March 2015 to file a supplemental written submission addressing the Arbitral Tribunal’s Request, and China will have until 16 June 2015 to provide any comments in response to the supplemental written submission of the Philippines. The Philippines has been invited to address, as it considers appropriate, any public statements made by the Chinese government in relation to
the dispute,” the PCA said.
“The Arbitral Tribunal will determine the further course of the proceedings, including the need for, scope, and scheduling of any other written submissions and hearings, at an appropriate later stage,
after seeking the views of the Parties. The Arbitral Tribunal is presently consulting with the Parties on a “Statement of the Ministry of Foreign Affairs of Viet Nam for the attention of the Tribunal in
the Proceedings between the Republic of the Philippines and the People’s Republic of China,” received by the Registry for the attention of the Arbitral Tribunal on 5 December 2014,” it added.
I keep shouting that none of these progressive posing issues matter if we allow this MARCH TOWARDS INTERNATIONAL ECONOMIC ZONE COLONIAL STATUS because TPP and this global corporate tribunal will simply erase any laws we are making today in our US cities and states. So, all of the real estate deals---all of the corporate tax subsidies---all of the bond deals----with contract agreements for 30 years ---for 10 years---will be simply challenged by a global corporation like UnderArmour to assure any agreement remains in their profit-making favor. If Baltimore gives UnderArmour this massive corporate subsidy then Trans Pacific Trade Pact and US International Economic Zone policies will keep those subsidies in place because to take them away is to cause UnderArmour to loose profit. This is why Baltimore City Hall---working for Wall Street Baltimore Development and Johns Hopkins is passing as much corporate tax subsidy and real estate deals it can BEFORE TPP is installed.
This is also why I shout to the 5% Wall Street players no doubt thinking they are winning with real estate deals ----TPP will allow global corporations to take any real estate they want/need including that of these Wall Street players.
This is why is is critical to stop US International Economic Zone policy and stop global corporate campus policies NOW.
If you are saying NO to TIFs and nothing about these gorilla issues---you are likely a Clinton Wall Street global corporate neo-liberal/neo-con
In Baltimore we are already seeing all TIF/PILOT kinds of corporate tax breaks simply roll over from decade to the next and this is why. $15 an hour-----equal pay for women----family leave----
NONE OF THAT EXISTS IN ANTI-FORMALIST WEALTH MAXIMIZATION
THE GOOD NEWS IS UNDER FORMALIST US CONSTITUTIONAL LAW MUCH OF THIS WILL NOT STAND.
Baltimore Poised to Give Under Armour the Biggest Corporate Tax Break in History
Zach Cartwright | March 14, 2016
Baltimore is about to give out the largest corporate tax break in history to Under Armour while ignoring its resource-starved schools and public services.
A new development proposal would allow Under Armour to get $535 million in tax-increment financing (TIF). When city districts and wards pay property taxes, a portion of the money is used to fund public services, while another portion is set aside for TIF financing. TIF money is specifically designated to encourage economic development in blighted areas.
But Under Armour isn’t creating jobs and opportunity in an underserved community — the proposed gargantuan TIF development for the company is on prime Baltimore real estate. City Councilman and mayoral candidate Carl Stokes told Baltimore Brew that the Under Armour proposal is one of the largest TIF deals in U.S. history. Baltimore Sun reporter Luke Broadwater contextualized the absurdity of the tax break in one tweet:
“TIFs are supposed to be for businesses in commercial areas that are blighted, with high unemployment and high poverty levels,” Stokes said. “I’m curious to see, given the criteria we’re supposed to use, how the sponsors will justify this TIF.”
If the proposal were to go through, Under Armour would build a headquarters at the center of a sprawling new development named Port Covington, with over 5.5 million square feet of office space, 1.5 million square feet of retail space, 7,500 residential units, and 200 hotel rooms. The development would also contain a stadium and 17 new streets with 66 intersections, and 10,000 new parking spaces.
But Baltimore community leaders are skeptical of the faeries-and-unicorns picture that Sagamore Development, the corporation run by Under Armour CEO Kevin Plank, is painting. Morgan State University professor Lawrence Brown points out that TIF development projects often promise too much and deliver too little. Brown believes the money could be better spent by investing it in truly needy communities with high unemployment rates, like Sandtown, where Freddie Gray was killed by police.