1 What are the promises of law and courts in society Law and Markets Markets are a form of social organization which set prices as a function of supply and demand Like any form of social organization law and markets have advantages and disadvantages i Creates incentive for innovation ii Plusses of markets 1 Create incentives for innovation and investment 2 Set prices 3 Help regulate production and consumption iii Weaknesses of Markets 1 No mechanism for distributional equality 2 Dependence on reliable information level playing field 3 Externalities Common Pool Problems a Externalities third party problems b Common Pool doesn t exclude people quickly diminishes if we leave people to their own contracts 4 No stability which leads to people not taking a chance to invest a Promise of the Law using the Logic of the Triad i Dispute resolution ii US v Nixon 1 Nixon was forced to hand over the tapes despite his privilege Privilege doesn t apply to criminal investigation decisions affect the succession of the presidency b Correct Market Failure i Externality ii Public pay for your own issue Law as a means for correcting market failure How did the New Deal labor laws deal with the issue of unfair distribution Trying to level the playing field How do environmental laws deal with the problem of pollution which is a classic externality i Permits etc ii River of Troy 1 The Problem of externalities pollution that have a third party cost The Court steps in to regulate i e laws and so forth c Correcting Political Failure i Civil Rights 1 Huge group of people against being discriminated 2 Civil Rights activists converted Brown decision IG politics to Entrepreneurial politics and civil disobedience And it finally converts to Majoritarian Politics Entrepreneurial politics used Brown and Civil Disobedience NY Times Majoritarian Politics used Preserving the Rule of Law Law as a Means to Correct Political Failures Definition Law and courts promise to correct political failures meaning law and courts potentially provide a means to address claims that other policy makers are either unable or unwilling to address i American courts try to do this ii Separate function than dispute resolution iii When courts get into this business questions of legitimacy get raised Promise Example Source of Legitimacy How do courts get away with this Orderly Dispute Resolution US v Nixon Logic of Triad Correcting Political Failure Brown v Board also how courts Perceived prudence by elites and can reconstitute politics public Correcting Market Failure Labor laws and environmental laws Perceived prudence by elites and to help correct limits public Overview of Promise of A L Dispute Resolution Relatively poor too costly and unpredictable Correcting Political Failure Relatively good entrepreneurial lawyers political judges high levels of rights consciousness institutionalized use of the courts following Brown Correcting Market Failure Variable depends on availability of legal resources to one shotters nature of problems underlying market conditions 2 What are the constraints on the law and courts in fulfilling these promises Doctrinal i Precedent statute Institutional i Internal Organizations of the courts passivity wait for cases to come to them and cannot implement ii Decentralization of the courts federal and state courts 1 The CCV argues that because of internal fragmentation the courts cannot stick together as one that is why you have the federal and state court system iii External checks and balances iv When the court has enough power to make political change Cultural i Stem from elite or public opinion Because the courts lack broad course of power their power is the power to persuade but it is limited by the types of arguments it can make by elite and public opinion 3 What are the dynamic versus constrained court views See Midterm Study Guide 4 How does the American legal system differ from those in other economically advanced democracies See Midterm Study Guide 5 What are the advantages and disadvantages of adversarial legalism See Midterm Study Guide 6 What do the stories of litigation discussed during the semester such as the story of Brown v Board of Education Jo Carol Lafleur case Borough of Versailles v McKeesport Coal Co and Shoney s litigation teach us about the dynamic and constrained court views Brown v Board of Education Ruled that separate but equal was unconstitutional desegregated public education facilities outlawed racial segregation in school system i CCV DCV 1 Doctrinal No doctrinal constraints because the Supreme Court was highly motivated to make policy Dynamic a The District Courts ruled in favor of Board because of Plessy v Ferguson which stated that separate but equal was constitutional because they approved racial segregation in public facilities i The Supreme Court overturned this stating that the separate but equal negatively affected the Negro children because the institutions were not equal separate educational facilities are inherently unequal 2 Institutional a The Supreme Court was not constrained because entrepreneurial lawyers and or interest groups actively bring cases on behalf of oneshotters NAACP and Brown the Court ruled in favor of a one shotter b 3 c Cultural which defies Galanter s argument of how the haves repeat players come out ahead of the have nots one shotters i Entrepreneurial lawyers turning to the courts seeking social change Constrained by the fragmentation of the judiciary in that the District and Supreme Courts did not find a single voice Courts lack of sword a No cultural constraints because even with clear cultural resistance from b the south the Supreme Court was dynamic and overturned the District Court s ruling The District Court was constrained by the public resistance and ruled in favor of Board but this did not affect the Supreme Court The Court was dynamic in that they have the ability to politicize issues have otherwise gone unheard In this case the courts brought the issue of civil rights to the public s attention and consequently built a coalition that pressured other governmental actors Rosenberg In general ii The courts will be constrained 1 Because of passivity they have to wait for a case to be brought to them 2 When they lack the power of implementation 3 When legal precedent like Plessy is involved and the courts aren t highly iii motivated to overturn it because if the Supreme Court hadn t been motivated the District Court s decision would have been