● Why not live in a world of self-help?○ Two issues:■ Not all disputes lend themselves to self-help■ Not all self-help scenarios are created equal:● Go it alone - L1 acts unilaterally● The Godfather - goes to a third party, who acts unilaterally● Mutual accommodations - L1 and L2 work it out without help ○ This is less objectionable on its face but not a panacea■ These scenarios raise concerns about arbitrariness, retribution, exaltation, mistakes, etc.● Law as a means to “correct” political failures ○ Definition: law and courts promise to “correct” political failures, …○ Meaning the potentially provide a means to address claims that other policy-makers are either unable or unwilling to address○ Note:■ The point is not that the courts will always act wisely or efficiently■ This is a different function than ODR■ It rests on a different source of legitimacy, even though courts might argue that the law compels their actions■ To “correct” political failures, courts must step outside the role of referee and “make policy” ● Whats policy making?○ Policymaking is a process by which demands are translated into authoritative laws and practices○ Policy scholars often describe this process in terms of a cycle○ Mobilization - Agenda setting - info gathering - rulemaking - implementation (begins again)● Policymaking through the courts○ Same steps distinct rules and institutional setting■ Mobilization (contingency fees, class actions, “fee shifting” statutes, punitive damages ● Punitive damages: allows courts to fine defendants and the moneyoften goes to the plaintiff■ Agenda setting (filing a complaint, notice pleading, jurisdiction, venue) ■ Info gathering (discovery)■ Rulemaking (judicial decisions, stare decisis, precedent)■ Implementation (remedy law, injunctions, consent degrees)● What about the logic of the triad?○ By definition, judicial policymaking violates the logic of the triad○ Does this mean that judicial policymaking always undermines the courts’ legitimacy?○ NO!○ But the basis of legitimacy rests on the perceived prudence of the results, not thelogic of the triad○ REMEMBER: we said that orderly dispute resolution and judicial policymaking were “promises in tension”○ It is not unusual for us to ask contradictory things for the government○ Congress = national legislator but its members are elected locally○ The president = a leader of a political party and a head of the govt representing everyone○ Agencies = repositories of neutral and political actors who fight for their budgets in Congress● If juridical policymaking violates the logic of the triad, why do judges do it?○ They have to because…■ Laws are often vague or■ Laws sometimes conflict ○ They want to because… ■ Federal judges are political appointees and many are highs ideological■ Precedents grow antiquated pr produce absurd results■ Elected branches are unwilling and unable to act (which creates a politicalvacuum)● Why would any group choose to use the courts to make policy○ Implicit in our discussion is the notion of institutional choice○ Let's take a closer look at what this means in the US, which features “separated institutions sharing powers”● A simplified landscape○ Choice of sector■ Public ● Level of govt○ Federal ■ Legislative■ Executive■ judicial○ Local■ Legislative (council)■ Executive (mayor)■ Judicial (municipal courts)○ State ■■ Private ● Institutional choice and civil rights ○ 1) What was the political logic of turning to the federal courts○ 2) What did the courts do?○ 3) Were the courts rulings “effective”○ 4) How do you know?● A Framework of legislative/political potions○ Wilson and Diulio provide a framework for answering the question of why NOT congress○ They imply that different types of policy proposals engender different types of politics○ To assess the type of policy proposals, they ask■ Are they perceived cost concentrate or diffused?■ Are the perceived benefits concentrated or diffuse○ The answers to these questions imply different political challenged in “selling” theproposal to congress○ If groups lack the resources of “selling their proposals, they need to turn to other forums to seek change● Why not congress? A typology of policies and coresspidnng legislative strategiesdiffuse concentrateddiffuse Majoritarian politics Client politicsconcentrated Entrepreneurial politics Interests group politics ● Why use the federal courts (to set the