● 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
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