Final Notes - Nation of strangers o ID idea that America is...

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“Nation of strangers” o ID: idea that America is diverse and not close-knit o SIG: need for more A-L in America since we sue others more (not neighbor- neighbor); comparison of American courts to other nations with smaller, more homogeneous populations with a more even distribution of resources American Creed o ID: American political culture; freedom, liberty, commitment to rule, equity of opportunity & how those values are at tension and can shape issues o SIG: comes into play when we look at American courts in perspective with other countries and place them in political context; Part I of American recipe for A-L; DCV against cultural constraint Interest Group vs. Majoritarian Politics (Wilson) o ID: interest group: concentrated benefits and costs (small group pays and small group benefits), need to lobby, litigate, fight every step of way (i.e. labor laws); majoritarain: diffuse benefits and costs (all pay and benefit), energize majority (i.e. social security) o SIG: This is a major reason for more A-L; for example, Brown , African Americans couldn’t use interest group politics because they couldn’t muster up enough votes in Congress, therefore, African Americans went to the courts for help Orderly Dispute Resolution o ID: Deciding cases based on the rule of law o SIG: one of the promise of the courts; uses logic of the triad (courts using consent, ceremony, and rule of law to act as referee between two litigants); with regards to A-L, dispute resolution works poorly because it is too expensive for OS’s and too unpredictable for RP’s Correcting political failures o ID: law and courts provide means to address claims that other policy makers are either unable or unwilling to address o SIG: one of the promises of the courts; (e.g. Brown since Congress couldn’t help since African Americans couldn’t get majority); much more contested because the courts create policy and its legitimacy rests on perceived prudence of decisions; with regards to A-L it is somewhat responsive, entrepreneurial lawyers + political judges + high levels of rights conscientiousness + institutionalized use of courts following Brown , but, courts act w/in broad confines of dominant cultural framework Correcting Market Failures o ID: idea that the courts promise to address market pathologies o SIG: third promise of the law, law expected to fix externalities (unaccounted for 3 rd party costs), common pool problem (scarcity of resources), and unfair, distribution; (e.g. fines, nuisance laws; permits, fines, etc.; labor laws, redistribute
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wealth); w/ regards to A-L its variable, depends on availability of legal resources to OS’s + nature of problems (e.g. complexity) + underlying market conditions Doctrinal Constraint o ID: Formal limits on the courts that are derived from statutes, court decisions, or administrative regulations; limits on judicial power or judicial coercion o SIG: CCV says they’re strong, given social construction of the law; DCV says they’re weak, given the ambiguity of legal texts; Constrained when rules highly
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