posc 130 midterm (essay question)

posc 130 midterm (essay question) - W hat are the main...

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What are the main promises of the law and courts in any society As M.P. Baumgarter points out in his article On Self Help in Modern Society “ it is often taken for granted that ordinary citizens are unable to solve many of their problems with others, but must turn to the law for help.” Perhaps this is taken for granted because it is so ingrained in the courts that this function seem to be an innate feature of our judicial system. However without the triad conflict resolution can devolve into endless feuds of tit for tat. Therefore, orderly dispute resolution is the most basic promise of the courts. This duty ranges from high stakes cases such as US V Nixon and Gore v Bush to low stakes day to day tort trials. The scale and scope of the cases along with the general acceptance of their outcomes stands as testimony of the courts authority on these matters. The second promise of the courts is to correct political failures. The textbook example of this function is Brown v Board. In Brown v Board the civil rights movement had been progressing and gaining support for some time. Broadcasts of police abuses had brought popular support for the movements cause however they movement could not a political foothold (as there was not enough political will) therefore they moved the issue to the courts. In the courts their opponents advantage was greatly diminished and the civil rights movement came out victorious. In the end the courts did what policy makers could not or would not do and this is at the heart of how the courts correct political failures. The third promise of the courts is to correct market failures. The court is involved in a range of issues from unfair distribution cases such as tax law to common pool problems such as litigation over the distribution of water resources. However the most common is the courts involvement in negative externalities, these cases are like the kind fond in the article Saving The Earth and largely revolve around internalizing the unpaid external costs. What are the limits on the law and courts in fulfilling these promises ? The constrained court view would say that there are doctrinal, cultural and institutional constraints. Doctrinal constraints exist under the assumption that “the Constitution and the set of beliefs that surround it , is not un-bound”(Rosenberg 10). In other words, Doctrinal constraints are formal limits placed on the courts by the law. The Failure of the class action suit against the Army Corps of Engineers is an example of such a situation, though the judge was “sharply critical of the corps” he could continue the case because the
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This note was uploaded on 11/29/2010 for the course POSC 130g taught by Professor Below during the Fall '06 term at USC.

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posc 130 midterm (essay question) - W hat are the main...

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