● 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 manyways 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. → fragmentedgovt,; 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 → A-L (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
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