Midterm essay question notes - Essay Questions 1 When are...

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Essay Questions 1. When are courts most likely to be constrained/dynamic? CCV: Definition: courts are limited in ability to make a difference and thus “constrained” When: Basically when all forms of constraints are strong: Strong doctrinal constraints, internal and external institutional constraints, and cultural constraints -limited nature of rights -limited judicial independence, limited implementation powers; i.e. Brown constraints on judicial power and coercion standing, ripeness, mootness remedy laws internal fragmentation cost of litigation RP v. OS Inefficiency, internal fragmentation, passivity (courts must wait for case, can’t file own) Weberian – clear chain of command, clear rules/procedures, specialization Appointed based on ideology and political party Precedent is built up over time and is difficult and takes very long to overturn Must convince public an elites of what they are doing in order to receive implementation If there is little tension between the other branches ideologies then the courts are constrained DCV: Definition: courts are active and effective in making change and thus “dynamic” When: Constraints are weak, broad, slow, inefficient -Free from electoral pressures because of appointment process -Not about political ties but about legal arguments -Power to politicize an issue ambiguity of legal texts allows for judicial interpretation which is constantly changing broad rules of standing and numerous lawyers – open the door to law suits
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