CCV Doctrinal 100 Institutional 100 Cultural 100 DCV Doctrinal weak Institutional weak Cultural weak Confused We argued that the courts promise to serve a number of functions in society and that they face a number of constraints CCV v DCV an argument about whether the courts are serve these functions in the American society especially the function of correcting political failure Rosenberg and related lectures Now looking at The relationship of american courts to other political branches spatial model and other levels of govt Roe The ways in which american courts are organized Kagan The goal is to develop an understanding of when american courts which in many ways are internally hardwired for making policy are more likely to be constrained judicial can t local resistance unified govt A typology of legal systems kagan 2001 Informal Formal Hierarchical Expert or political Bureaucratic Party influenced Negotiation or mediation Adversarial legalism Thinking about the puzzles assembling relevant factors American courts Large diverse rich although resources are unevenly distributed Fragmented political institutions Individualistic american creed and the rise of total justice Courts in other industrialized nations Smaller more homogenous less wealthy resources are evenly distributed Unified political institutions Communitarian political values Definition of total justice Is the belief or norm that modern technologically advanced societies can and should Compensate victims of unfair treatment personal injury and unexpected economic loss Prevent widespread social harms such as environmental degradation and discrimination The american recipe for adversarial legalism kagan Part 1 assemble the basic ingredients liberalism populism distrust of centralized govt fragmented govt formal rights influence Part 2 add total justice to the mix Demand for total justice existing structures of adversarial legalism and distrust of centralized authority rights based welfare state Part 3 top with a legalistic culture and entrepreneurial lawyers and professors Why american adversarial legalism Puzzle 1 Political culture 1 liberalism populism fragmented power AL formal legal contestation litigant activism Puzzle 2 Political culture 2 total justice A L formal legal contestation litigant activism A L formal legal contestation litigant activism Lawyers legalistic culture A L formal legal contestation litigant activism
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