midterm sg - Logic of the Triad courts are the third party...

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Logic of the Triad courts are the third party referees of society ex. Roger Clements vs. his trainer (in dispute over libel about steroids) rule of the law helps preserve stability of triad by establishing neutrality of the court consent, ceremony, law and the rule of the law Roman courts required that the litigants agreed to rules and process of trial be- fore it began Alternative - Godfather and Self-Help ex. opening scene of godfather in which he asks the godfather to bring justice to the thugs that beat up his daughter because the courts would not two problems not all disputes lend themselves to self hel not all self-help scenarios are created equal (these scenarios raise concerns about arbitrariness retribution, escalation, mistakes, etc. “go-it-alone” - L1 acts unilaterally “The Godfather” - L1 goes to a third party who acts unilaterally “mutual accommodation” - L1 and L2 work it out without help costs vigilantism can lead to mutual escalation no checks against mistakes or arbitrary actions limited access - not everyone can go to the godfather (only those in the com- munity) advantages efficiency - time and resources ($) tailored/particularized resolution can engender mutual accommodation rule of law - the Norm - or expectation - that legal disputes will be resolved according to pre-existing rules and procedures regardless of the status of individual litigants this is an ‘ideal’ and debated about its legitimacy in today’s political realm examples of judicial resolution of high stakes political conflicts in the US The Wategate Tapes Case - settling and issue of political succession contrast to Malaysia example in which Malaysian supreme court challenges the executive (President) and he in turn fires the court and establishes a new one Brown and Desegregation did the Brown decision unilaterally transform educational policies? no. desegregation takes off only after Congress and Executive Branch add their re- sources to the fight
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but the court decision changed the perception of the issue - moved it from an in- terest group politics problem to entrepreneurial politics since it now was an issue of “rights” and “civil disobedience” and then it moved to majoritarian politics given the logic of the triad - we know judges are likely to SAY the law matters. How do you know doctrine really matter - one way is J UDICIAL CAN’T (eg. FSA and Katrina) Internal institutional Con- straints Passivity+Galanter=meany issues that the courts just don’t address Internal fragmentation: dif- ferent circuits of the courts have different consensus (ex. 5th circuit is more lib- eral than the 7th) Broad standing rules + lots of lawyers = no shortage of cases brought to the courts Broad injunctive powers - power to instruct parties in- volved to change External Institutional Constraints appointment process: judges represent views of those that appointed them (pres. and congress)
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