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jeb barnes

jeb barnes

Description

School: University of Southern California
Department: Political Science
Course: Law, Politics and Public Policy
Professor: Alison renteln
Term: Fall 2016
Tags: Law, Politics, Policy, logic, Of, Triad, Judges, political, Actvitist, restraint, Sotomayor, Nixon, and what
Cost: Free
Name: Jeb Barnes Law, Politics and Public Policy Week 1 Lecture + Reading Notes
Description: These notes cover all of the information covered in Lecture (including some Jeb Barnes witticisms), as well as bullet points marking the key points of each article / case in the reading.
Uploaded: 01/17/2017
16 Pages 193 Views 3 Unlocks
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● What’s the promise of Law and Courts?




- What is the implication for liberal and conservative judges voting together?




- What can we draw about the constraints of the law?



Law, Politics, Public Policy (Lecture) FALL SEMESTER 2017 INSTRUCTOR: Jeb Barnes barnesj@usc.edu Office Hours - 12:30-2:30 210 VKC January 10, 2017 Email the guy about getting paid to take notes for this class - that way I’ll be inspired to keep up the good work lol ● “I used to be a litigator, so I don’t feel anything” ● Reader is available through Cognella ● “The bookstore is the last vestige of the Soviet Union” ● Professors = “Sage on a Stage” After the age of the internet, this is what is key in higher education. ● Analytic skills and assessing the quality of unfiltered information; and using theory to generate useful knowledge in an age of information overload. ● ● Course Overview ○ Law, Litigation and Courts seem to be everywhere in U.S Politics and policy ○ “College is an intellectual candy store” ○ You will be primarily thinking about the ways that the Supreme Court shapes the United states 1The First Paper Assignment: Due Feb, 9th 4 double spaced pages, Constrained v. Dynamic Court decisions - Constraints: Courts are largely bound by past law and precedent. - Dynamic law: believes that the courts have the power to interpret and re-interpret the law as they please. - Citizens United or Windsor ● How to analyze these things accurately - Does the law constrain the Court’s Majority decision or not? - Textual + Behavioral (or voting pattern) analysis - The dissents are because of some sort of procedural ground - analyze why they would be dissenting based off of precedent, nt on their personal opinion. - What can we draw about the constraints of the law? (It’s not actually that constraining because the law is so ambiguous) - What is the implication for liberal and conservative judges voting together? (That the law is in fact constraining) - Theory (Dynamic v. Constrained Court Views on Legal Constraints) - Observable implications of theory (If X theory is right, then we’d see Y) - Empirical Analysis (Data in light of observable implications) - Hypothesis Generation 2Law, Politics, Public Policy (Discussion) January 10, 2017 Office Hours: Mondays from 2-4, Friday 1-1:50, VKC 302 Instructor: Fabian , naranjog@usc.edu ● Keep in mind the differences between constraint and dynamic judgements ● Dynamic:​ Judges feel like they have judicial discretion, they are able to interpret the constitution and laws as they see fit to fit the molds of modern society and the circumstances. ○ Judicial Activism - Judges are willing to adapt to modern trends and societal changes ○ Adapt the meaning to apply to new contexts and circumstances ○ Law is open ended. ● Constrained:​ The constitution and laws in their wording is COMPLETELY set in stone. Very much guided by precedent, no flexibility ○ Judicial Restraint - Judges don’t want to adapt to the times ○ Take things as the founders meant them. ○ Far more bound by the writing and the context of the laws. ○ What does the constitution say - we don’t care what the constitution doesn’t say / is implied. ● “Maybe Blackboard is just drunk… and I’m jealous” ● Key Question of Paper: Does the law constrain the Court’s majority decision or not? ○ Not Op-ed ○ Not an opinion piece. This is not a research paper. ○ This is an analytical paper ■ Look at the question through the lens of the Dynamic and Constrained views 3Resources for cases: - https://www.oyez.org/ - https://www.justia.com/ - Find Law - Lexis Nexus - - 4Law, Politics, Public Policy (Lecture) FALL SEMESTER 2017 INSTRUCTOR: Jeb Barnes barnesj@usc.edu Office Hours - 12:30-2:30 210 VKC January 12, 2017 Part I Overview: ● What’s the promise of Law and Courts? ● Orderly Dispute Resolutions:​ We have mechanisms that allow for people to peacefully present and resolve issues. ● Judges act as referees, follow precedent and laws very firmly, don’t try to interpret things in a new way. ● People are able to agree to disagree peacefully in US Law, despite the US containing millions of people of vastly different viewpoints, immense racial, ethnic, sexual diversity ● Lots of conflict ensues as a result of this diversity, but there is still an Orderly Dispute resolution system. ● Judicial Policy Making ​and “Correcting Political Failures” ● Judges that believe that Law is supposed to be at the cutting edge of policy / reflect society’s changing values ● Essentially making up the rules of the law through their modern interpretations, and applying them. 1● The Limits on Law and Courts… ● Law / Doctrinal limitations (limited by legal tools, precedents, etc.) ● Institutional restraints (Checks / balances, Congress invalidating rulings, Finances of campaigning ) ● Cultural restraints (Must work within social and cultural toolkit or the USA) ● Court hierarchy (Where cases start → finish): Lower Courts → Appellate → Supreme ● What is Law? ● “Law is reason, free from passion” (Aristotle) ○ Law IS passionate though! Most laws are governed by passion, created out passion / personal beliefs, not necessarily reason. ■ ( Discriminatory laws, laws based on religious beliefs) ● “Law is nothing other than a certain ordinance of reason for the common good, promulgated by the person who has by the care of the community” (Aquinas) ○ Certain laws are not for common good (Some financial laws, some religious laws, discriminatory laws - they represent only partial opinions) ● “Every law is an infraction of Liberty” (Bentham) ○ Almost every law infringes on one’s “true liberty” ○ Laws can be limiting, but they are necessary to maintain the happiness and safety of all humans; to keep order (like preventing murders, robberies, etc.) ○ There are many laws that protect other peoples (namely minorities) liberties, however. (Anti-discrimination laws) ● “That which is not just is not law” (Garrison) ○ Law, in order to be true, must reflect true justice ○ ...but there are several laws that do not necessarily represent true justice. ● Law both infringes on certain liberties and protects others. ● Part of social contract - you are willing to sacrifice some of your freedoms so that you are mostly protected and exist in a protected society 2● Some definite law as… ○ bodies of rules enacted by the govt. Backed by the force of the state. ○ a language w/ distinct norms and modes of reasoning embedded in professional practices. ○ a political resource that must be leveraged by activists. ○ Socially constructed understandings of legal rules. ● Some Working Definitions…. ○ Now…. We’ll use the formal “Body of rules, enacted by the govt, backed by force of state. ○ Later…. Law as a political resource ○ And as Socially Constructed practices under rules ○ Inherent conceptual ambiguity of law “will haunt us in our quest of assessing the rule of law” - that is, law does not have one definite meaning, thus making critical analysis extremely important. ● What is the Rule of Law? ○ Expectation that legal disputes will be resolved according to pre-existing rules and procedures, regardless of the status of individual litigants. ○ NO ONE is above the rules - laws apply to everyone in the same way, period. They govern the entire nation. ● What is Litigation? ○ Includes the process by which specific disputes are resolved according to pre-existing laws and in accordance with the rule of law. ○ Taking legal action, resolving it through law. 3● Why are Law + Courts Nearly Universal? ​The Logic of the Triad (Shapiro) ○ (diagram of Logic of the Triad from Judicial Policymaking p.23) ● If you and another person are in dispute that you cannot resolve on your own, you will turn to a neutral third party to try and resolve your issue. ● The courts act as these neutral referees to resolve disputes. ● Why is this relationship inherently unstable? Because in the end, it’s really 2-against1 to the loser ● Consent + Ceremony are key to establishing the Court as a distant and respectable third party. ● Non dichotome decisions (a little bit to both sides) ○ Think like the solomon baby; cutting the issue in half is not smart. ● Law helps preserve the logic of the triad. ● Logic of the Triad Applied: ○ The logic of the triad deeply shapes how the think about the courts. ■ “A Judge Too Far” - Highlights the red flags of Sotomayor’s appointment in the eyes in the eyes of a critic ● She was too much of an activist / favored judicial policymaking ● Thought the court could use “A Wise Latina” ● Extremely leftist ● Ricci v. DeStefano ruling (reverse discrimination case) ● “Kind of a bully: 4■ “Pot, Meet Kettle” ● A look at Sotomayor’s record to counter all of the ‘red flags’ ● She rejected race-related discrimination claims 80% of the time ● Admitted “Wise Latina” was a poor choice of words ● Lots of Conservative accusation of Sotomayor, when many of these accusers are openly racist and discriminatory themselves (when Sotomayor is not) ■ The Blanketship Case ● Major contributors to the campaign, which created a bias within the judge ● here was a clear effort to get a particular judge on the case with Massey Coal through the means of money. ■ Gay Marriage Controversy in Iowa ● We want judges to base things on law, not electoral results ● Should not consider public opinion - you would then no longer be a neutral referee ■ Scalia’s Dissent ● Majority of Justices are too activist-y, Court is stepping outside of its role as neutral referee ● Belief that the Supreme court does not accurately represent the nation, and thus, should not be able to make radical social changes. 5Judge refuses to shake the hand of witness: How does it Exhibit the Logic of the Triad? ● Judge does not want to show any bias by being friendly with either side ● Wants to remain completely neutral ● Consistent with logic of the Triad so that he can be a neutral 3rd party ● State seal in the background represents the power / authority the judge represents ● Judge being in robes shows the degree of respect / ceremony, creates another degree of separation from the disputers. 6Law, Politics and Public Policy SPRING SEMESTER 2017 Professor Jeb Barnes Jan 12 - 17 Reading The Promise of Law:​ Orderly Dispute Resolution. Almost every society features some form of law and courts, ranging from tribal laws and councils in rural villages to detailed regulations and tribunals in urban, modernized societies. Why? What are the law’s basic functions and promises in society? What are the alternatives to formal dispute resolution? What are the advantages and limits of “self-help”? Readings: Mario Puzo, The Godfather (1969) ● Father (Bonasera) is contesting two criminals who ‘dishonored’ his daughter ○ Judge openly detests the criminals ○ Because of the way the law works and the fact that the two criminals were minors, they were given an incredibly light sentence despite the horrific nature of their crime. ○ Amerigo Bonasera felt besmirched by the law, that it acted unfairly and did not serve proper justice. ○ In order to get ‘proper’ justice, they must ask a mafia boss to be violent on these boys for him. 1Judicial Policymaking, 6-79 ● Orderly dispute resolution = remaining neutral who apply the law as it is written ● Judicial policymaking = COurts reinterpret law in light of new social mores ● Rule of Law Index measures of how constrained, corrupt, open, orderly, etc. different countries law systems are. ● Scandinavian countries are at the top ranking. US is ranked 19. 1. Vigilantism and “Self Help” ● On Self Help in Modern Society ● Individuals taking matters into their own hands; ● IF people were able to police themselves more and not rely as heavily on the law for order, they could exercise more social control. ● Self help is less severe, people immediately involved with the issue participate in the resolution with no outside parties. ● Those who are relationally and culturally closest to those in dispute are teh best mediators. (or at least the least severe and most conciliatory) ● Securing the Borders Just Got Personal ● Vigilantism at work - Volunteer civilian patrol guarding the borders trying to get others deported. ● People (California spearheaded) are frustrated the government is doing nothing about the immigrations, so they took matters into their own hands ● Legislation and Presidential action were proposed to deal with the problem of immigration, but there has been little attention paid. ● Prop 187 (preventing children of illegal immigrants from going to public school) and the interest that proposition created in voters was a cry for help to get Washington to be responsive on the issue. 22. The Social Logic of Courts ● Martin Shapiro and the Logic of the Triad ● In Comparative and Political Analysis, Shapiro argues that courts reflect a universal social logic known as “Logic of the Triad” ● Members of any society inevitably get into disputes they cannot resolve themselves, so they turn to a third party for help - the result is a triad. ● Once a decision is made, it shifts to a two-against-one relationship from the losers perspective ● Blame it on my Reagan Youth ● Alito is being followed by the decisions he made in the Reagan Era - he cannot escape them. ● A Judge Too Far ● Sotomayor is super far left, very much a liberal activist ● Judicial Activism had the potential to have judges in effect ‘make’ law, which can lead to oligarch-like positioning ● Sotomayor seems to be discriminatory towards whites? (according to Ricci v. DeStefano) ● Pot, Meet Kettle ● Sotomayor compared to KKK by Tancredo, who happens to be closely tied with a white supremacist (Epstein) ● Lots of Conservative accusation of Sotomayor, when many of these accusers are openly racist and discriminatory themselves (when Sotomayor is not) ● Court Says Judges Must Avoid Appearance of Bias with Donors 3● Money can sway rulings and favors ● Massey Coal Case - 3 million was donated to unseat a democratic incumbent in favor of Benjamin, a Rep. The campaign donations were insane.There was a clear effort to get a particular judge on the case through the means of money. ● Rejection of Iowa Judges over Gay Marriage Raises Fears of Political Influence ● In many states, judge’s influence can be bought. ● Many states elect judges, and as such, money can greatly affect their campaign and sway decisions ● Judges are supposed to be able to act neutrally and without any sort of majority influence… but with the election and use of money, they are losing that objectivity. ● Supreme Court of the United States (Scalia’s Dissent to Gay Marriage case) ● The supreme court is able to create “liberties” that constitution neglects to mention. ● Putting so much power in the courts - the unelected powerhouses - deprives people of the freedom to govern themselves. ● Marriage used to only be regarded by the province of states, complicating the Federal decisions regarding same sex marriage. ● The Fourteenth Amendment ‘Did not presume to know the extent of freedom in all dimensions’, and thus, the inclusion of same-sex marriage still should be able to be included because of the change in society and its needs ● “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy” (p.40) ● Belief that the Supreme court does not accurately represent the nation, and thus, should not be able to make radical social changes. ● Disgusted by the notion of making same sex marriage protected by the 14th amendment - did not like the notion of “freedom of intimacy, expression, spirituality” 43. Dispute Resolution in Action (Cases of Contested Political Succession Here and Abroad) ● US v. Nixon ○ Nixon tried to claim executive privilege as an excuse for the Watergate scandal… but he is not above the law, and they rejected. ○ Nixon stated that he did not have to show the information because of his presidential privilege ○ Delaying the case because of his claim of privilege may show some bias ○ Court held that neither the doctrine of separation of powers, nor generalized need for confidentiality of communications between High-Government officials alone can sustain this level of presidential privilege ○ Nixon ultimately had to release tapes ○ Crucial precedent that limited the power of any U.S. president (Also shows the Logic of the Triad​ at work!) ○ Subpoena = writ ordering a person to attend a court ● Finally, It’s President Bush ○ Supreme Court decided that there would be no more vote recounts, and declared Bush the winner. ○ The recounts could have create the possibility that Gore would overtake the votes… so the Florida Supreme Court put a stop to them. ○ Gore expressed that the nation should still stand behind the new president ( perfect exemplification of a peaceful transfer of power) ○ Tension created as a result of the court’s polarizing decision; the true winner will never be able to be known. 5● Khamenei’s Coup ○ Riots occurred in the wake of the Iranian presidential election ○ Media was completely blocked off ○ The election of Ahmadinejad was rigged / many viewed the elect as a dictator ○ Iranian people are demanding a free and fair revote / US should provide support ● And Then There Were Four ○ Prime minister of Malaysia is able to suspend justices as he pleases ○ One justice showed bias against he government, and was suspended ○ THe prime minister was planning on abolishing the court and replacing it with a body that was ”friendlier” to the prime minister ○ Prime minister is essentially able to rule with unchecked power, as he can ask parliament to remove the present supreme court as he pleases ○ 6

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