Final Study Guide - 1 What are the promises of law and...

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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 can reconstitute politics) Perceived prudence (by elites and public) Correcting Market Failure Labor laws and environmental laws Perceived prudence (by elites and
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(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
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