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 policymakers 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 money often 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 the logic 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 political vacuum 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 the proposal 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 strategies diffuse concentrated diffuse Majoritarian politics Client politics concentrated Entrepreneurial politics Interests group politics Why use the federal courts to set the agenda