FinalEXAMReviewSheet - Correcting Political Failure...

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Correcting Political Failure: Involves making policy in an area that other branches are unwilling or unable to address Promise of the courts to correct policy if other branches are unable to The point is not that the courts will always act wisely or efficiently, this is a completely different function than orderly dispute resolution and connotes an entirely different “social logic” Correcting Market Failures: Addressing market pathologies, e.g., common pool problems (unlimited wants and limited resources, unable to evenly split resources, therefore law must step in and regulate), externalities Markets are a form of social organization, which set prices as a function of supply and demand Like any form of social organization it: o Is politically and socially constructed o Does some things well and some things bad o Comes with a lot of ideological baggage Types of market failures: o Unfair distribution o Externality or spill-over effects o Common pool problem Brown v Board of Ed: A ruling o desegregate the public school system when both congress and the pres. failed to deliver in bringing along the social change, so the courts stepped in ruling over the controversial case. Dynamic court view because the courts served as a catalyst in bringing forth revolutionary ideas in the form of civil rights. Touched on doctrinal constraints with the terms “all deliberate speed” which was the clause used by the states to fail in desegregating the schools. Adversarial Legalism: Current political model in which the United States uses lawyers to sue and make policy change. It protects individual rights and liberties and has checks against arbitrary gov’t action. However, it is slow and costly and dependent on litigant resources. The US has no predetermined feudal system, the “American Creed” and there is distrust of centralized authority, which leads to fragmented gov’t with formal rights and party influence. Individuals want to know their rights and they are set in stone, with a demand for “Total Justice,” combined with existing structures of adversarial legalism and distrust of centralized authority which leads to a society of “rights based” welfare. It is efficient, flexible, and politically responsive, but unfair, with no checks against arbitrary actions and a lack of human dignity. Bureaucratic Legalism: Judge and juries converse, work together thus guilt and sentencing are done at the same time. Judges and jury sit n the same panel however the judge has more power and can overrule the jury. Juries write points of law showing why verdict was chosen and both sides can appeal. All evidence is admitted and can come into play. Results in significantly shorter cases. Judges do primary questioning, lawyers
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secondary, thus more centralized and efficient. Constrained rule oriented, slow to adopt,
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FinalEXAMReviewSheet - Correcting Political Failure...

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