● Dynamic and constrained court view are “analytically asymmetrical”● Dynamic course view - constitutive politics● Constrained court view - distributive politics ○ Who gets what, when and whereConstraint CCV DCVDoctrinal Typically strong Typically weakInstitutional (external) Typically strong Typically weakInstitutional (internal) Typically strong Typically weakcultural Typically strong Typically weakConstraint type Analytic focus Key concepts On balance Strong or weak?Doctrinal Textual analysis Right of privacy/”undue burden/substantial obstacle”Weak (novel/vague rights and frameworks)Doctrinal Behavioral evidence Split (5-4) decisions Weak Institutional (internal) Passivity of courts Public interests groupsWeak Institutional (external) Appointments Turnover Weaker than expectedInstitutional (external) Fragmenting of policymaking powerfederalism Strong not decisive? (states work w/in framework, limit right)Culture public/elite opinion Local v. national opinionStrong resistance in MississippiInterpretation XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXJudicial power Getting in “the game” Signaling to interest groups XXXXXXXXXXXXXXXXXXXXXXXXXXXXJudicial coercion Distributive v. Constitutive politicsPolicy outcome v. policy discourseXXXXXXXXXXXXXXXXXXXXXXXXXXXX● Lessons/hypotheses● Ceteris paribus (all things being equal), doctrinal constraints are more likely to be weak when…○ The underlying legal standards are vague and issues are ideologically divisive ● Ceteris paribus, passivity of the courts is less likely to be a constraint when…○ There are public interests groups on both sides on as issue to bring cases● Ceteris paribus, federalism is more likely to be a constraint on judicial coercion when..○ The policy must be locally implemented● Ceteris paribus, culture is more likely to be a constraint on judicial coercion when…○ There is strong resistance to an issue among actors who must implement the○ court's decision ● Part 2 definitions ○ The law is a body of rules, enacted by public officials, backed by the force of the state○ Public law directly involves the govt, both relationships among the governmental entities and the relationship between citizens and the state○ Private law government relationships among private entities ○ Criminal law is a body of public law that aims to prevent harm to society. It declares what conduct is criminal and prescribes punishment of such conduct○ Civil law is a body of private law that is concerned with private rights and remedies● Federal/state laws○ State■ State constitution■ Statures■ Regulations ○ Federal■ US constitution ■ statutes/treaties■ Regulations○ Federal over state, supremacy clause ● Federal/state courts ○ States courts (final but not exclusive sat on state law)■ State supreme courts ■ Appellate courts■ Lower court○ Federal courts (final but not exclusive say o federal law)■ Federal question, diversity jurisdiction ■ Us supreme court's■ Appellate courts■ Lower court○ Case can be removed from state to federal based on diversity jurisdiction ○ Can be moved based on appeal○ Remand, sent back for reconsideration● Jurisdiction and venue○ Jurisdiction: a body of rules that governs what cases the court can hear○ Venue: a body of rules that governments where case are heard● Placing courts in political context○ Courts ■ geography/demographics■ Political culture■ Political institutions ● A closer look…○ American courts■ Individualists “american creed”● Rights talk ■ Fragmented political institutions● Political vacuum ■ large, diverse, mobile, rich● Greater the social distance, greater the litigation ● Courts and fragmented authority through the interpretive lense of CCV v. DCV○ CCV■ The american system of fragmented power prives multiple check against judicial policy making■ When the elected branches “talk back”, the courts listen■ Courts anticipate the reactions of the elected branches accordingly ○ DCV■ The american system of fragmented power is a recipe of legislative inertia, which gives courts ample room to maneuver■ The elected branches are too busy bickering to talk back to the courts■ This creates a political vacuum that judges are likely to