Part 1● The promise of law and courts….○ Orderly dispute resolution ■ Peaceful transition of power■ The number one function of the state ○ Judicial policy making and “correcting” political failures● The limits on law and courts○ Doctrinal○ Institutional○ Cultural ● What is “law”?○ The law is reason, free from passion. - Aristotle ○ Law is nothing other than a certain ordinance of reason for the common good, promulgated by the person who has the care of the community. - Thomas Aquinas ○ Every law is an infraction of liberty. - Jeremy Bentham○ That which is not just is not law. - William Lloyd Garrison● There is no clear answer…○ Some define law as bodies of rules, enacted by the government, backed by the force of the state.○ Others define law as a language with distinct norms and modes of reasoning embedded in professional practices○ Others see law as a political resource that must be leveraged by activists○ Others see law as socially constructed understandings of legal rules● Some working definitions ○ Formal definition: the “law” is a body of rules, enacted by the government, backed by the force of the state○ Branching out later…■ Law as a political resource■ Socially constructed practice under rules…■ The inherent conceptual ambiguity of the law will haunt us○ What is the “rule of law”?■ It is the norm - or expectation - that legal disputes will be resolved according to pre-existing rules and procedures, regardless of the status ofindividual litigants ○ What is litigation? ■ It involved the process by which specific disputes are resolved according to pre-existing laws and in accordance with the rule of law ● Why are law and courts nearly universal? The Logic of the Triad (Shapiro)● Litigant 1 - Litigant 2 - The court (triangle)○ Consent, ceremony, non-dichotomous decisions (little bit to both sides)■ What is the role of courts in our society? ● Courts = referees■ Why is this relationship inherently unstable? ● 2-against-1 problem■ What is the role of law and the rule of law in this relationship?● Helps preserve the logic of the triad● The Logic of the triad applied○ The logic of the triad deeply shapes how we think about the courts and how we talk about them● Sotomayor○ “A judge too far”, washington times■ 3 red flags● She claimed that the court of appeals “makes policy”● “Wise latina” comment● Ruling in Ricci v. Destafano● She “tilts too far to the left and is a “bully”○ “Pot, meet kettle”, new york times■ Look at her record:● She rejected race-related discrimination claims 80% of the time● She admitted her “wise latina” comment was a “poor choice of words”● The Logic of the triad applied cont…○ The blankship case■ What happened?● Case about congress running in the coal mining country■ What was the ruling?● Couldn't rule on the case because of coal contributions to judge■ So what? What is the judge was a senator?○ The Gay marriage controversy in iowa■ What's so bad about judicial elections?■ Don't we want policy outcomes to reflect public sentiment?■ Why shouldn't judges consider public