Which of the following is not a feature of the American justice system Discovery Notice pleading Contingency fee Loser pays Summary judgment The big picture internal institutional constraints There are lots of ways countries can respond to public policy problems Kagan gives us a language for thinking about the options What are the trade offs associated with that choice As a formal matter trade efficiency for formal rights As a practical matter introduce bargaining in the shadow of a costly and unpredictable system Reasons of cost and unpredictability Our system of civil justice relies on high levels of A L Costly Redundant party influence ensures both sides collect the evidence multiple steps to trial Usually not always all at once trials Juries have to be selected for each trial and we need elaborate rules of evidence because of sequestration Lawyers have an ethical obligation to represent their clients zealously and financial incentives to make sure no stone goes unturned Unpredictable Juries are wild cards Politically selected judges not rule oriented civil servants entrepreneurial lawyers always testing the limits Lots of settlement Take home points making connections Adversarial legalism provides considerable formal protections of individual rights In practice A L is costly and unpredictable for structural reason As a result the vast majority of cases are settled Bargaining in the shadow of costly and unpredictable legal processes potentially threatens to Divorce outcomes of the law Emphasize bargaining power over justice Undermine common law process All of which casts doubts on the promise of A L to resolve disputes under the law in an orderly manner Landscape of questions and some key concepts What is the role of courts in society Orderly dispute resolution and policymaking Limits on courts Self help What is the role of the courts in US politics and policymaking Dynamic v Constrained court view Is judicial power and coercion dynamic or constrained Doctrinal constraint judicial can t External institutional constraint spatial model federalism Internal institutional constraint kagan typology bargaining scenarios Cultural constraints public and elite opinion Tes comprehension Do you understand the hypotheses about when the courts are constrained dynamic Do you understadn the formal and practical trade offs
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