Notes by: Anastasia Barbato

What is the role of courts in society?

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POSC 130 – Law, Politics, and Public Policy: Midterm Study Guide 

I. What is the role of courts in society?

 a. Orderly Dispute Resolution – diversity creates conflict based on differing  

viewpoints; judges stand as referees solving disputes using the law/precedent  in place so as to avoid bias toward one side or another

 b. Logic of the Triad – When one litigant (L1) stakes a claim of injustice against  another litigant (L2) in which a non-partisan justice of the court acts as  mediator of the dispute and comes out with the solution

 c. What is “Law”? 

i. Standard definition: a body of rules enacted by the government and  enforced by the state; the stricter the definition of the law, the less  likely it will matter

 d. What is “the rule of law”? 

i. The norm; the expectation, idea, and ideal that legal disputes will be  resolved by pre-existing rules and procedures, regardless of the status  of individual litigants

What are the types of law?

 e. The Godfather and Self-Help 

i. Advantages: efficient, tailored results, engender mutual  

accommodation

ii. Disadvantages: no procedural checks against mistakes or arbitrary  action; limited access; escalation

 f. Policymaking – process by which demands are translated into authoritative  laws and practices

i. Cycle:  

1. Agenda Setting

2. Information Gathering

3. Rulemaking

4. Implementation

5. Mobilization

 g. Judicial Policymaking 

i. Cycle:

1. Mobilization – contingency fees (financial incentive for lawyers  to mass people around a lawsuit), class actions, “fee shifting”  statutes, punitive damages (fining companies in a lawsuit for  

punishment for egregious conduct; $ paid to the party who  

wins)

2. Agenda Setting – filing a complaint, notice pleading (meeting  minimum standards for filing a lawsuit), jurisdiction, venue

What is a doctrinal constraints?

3. Information Gathering – discovery (gathering evidence and data for the case; very powerful tools at work), deposition

4. Rulemaking – judicial decisions, stare decisis, precedent (gets  more important up the line) If you want to learn more check out What is inflation rate?

5. Implementation – remedy law (laws specifically for remedying  situations), injunctions, consent decrees

ii. Judicial Policymaking VIOLATES the logic of the triad; the basis  of its legitimacy rests on the perceived prudence of the results iii. “Political vacuum” hypothesis If you want to learn more check out What is absolute advantage?

1. The hypothesis of the dynamic court that justices most often  become policymakers when there is policy gridlock in Congress,  meaning no laws are getting passed because the process is too  slow and inefficient and there is too much party opposition on  both sides  

 h. US v. Nixon  

Notes by: Anastasia Barbato

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i. Issue arose out of Nixon’s private group that engaged in illegal bugging of the National Democratic Headquarters and the President’s private  

tapes in the Oval Office concerning the activities

ii. Does the executive privilege extended to materials being  

sought as a part of a criminal investigation?

iii. The courts said NO; the tapes must be turned over; Nixon hands the  tapes over and resigns from the Presidency

 i. Brown v. Board of Education 

i. Issue arose out of class action lawsuit against the segregation of  

schools in Kansas

ii. Is segregation constitutional if the facilities are separate?

iii. Courts said NO; facilities that are separate are inherently unequal;  overturned prior precedent to create new policy If you want to learn more check out what are the signs and symptoms of malaria?

II. Types of Law

 a. Criminal Law  

i. A body of public law that aims to prevent harm to society; declares  what conduct is criminal and prescribes punishment for such conduct ii. Criminal Trial Timeline

1. Arrest  

2. Initial Appearance (probable cause)

3. Preliminary Hearing (probable cause for charge based on  

evidence)

4. Grand Jury/Information (prosecutor has enough to convict)

5. Arraignment (formal charges and plea)

6. Discovery  Trial  Verdict  Sentencing  Appeals

 b. Civil Law 

i. Body of private law that is concerned with private rights and remedies ii. Civil Litigation Timeline

1. Filing of Complaint (by plaintiff) Don't forget about the age old question of How does parental investment theory explain our response to provocations?

2. Defendant either: defaults or answers (may counter-claim)

3. Pre-Trial Discovery and Motions to dismiss/summary judgment  

(depositions, interrogations, document review all done here)

a. Summary Judgment – when a judge makes a decision  

about the case based on the evidence gathered before  

the trial without a full trial having to take place

4. Pre-Trial Conferences

5. Trial  Post-Trial Motions  Appeals  Judgment Enforcement

 c. Criminal vs. Civil Law 

i. Criminal – prohibition of a certain conduct & the threat of punishment  by the state

ii. Civil – involves everything else; centers on compensation of the  

plaintiff

iii. Bottom Line – we frequently use our civil justice system to address  significant social, economic, political issues other countries solve using  parties and bureaucracy

III. Is judicial power and coercion dynamic or constrained?

 a. Doctrinal constraints – limits on the courts derived from statutes, court  decisions, or administrative regulations; the more specific the law, the  stronger the constraint

i. Limits on judicial power (limits on the court’s ability to act at all)  1. Judicial “can’t” – When a justice upholds a law in place even if  

their political views do not align with those views/values in the  

law

a. Example: Fugitive Slave Act – a law stating that runaway  

slaves must be legally returned to their masters; justices

Notes by: Anastasia Barbato

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of the North who disliked slavery still had to send former  slaves back to their masters regardless of how they felt  because it was the law of the land Don't forget about the age old question of What is the definition of Neurotransmitters?

b. Example: The Katrina case – when the citizens of New  Orleans filed a class action suit against the company  who built the levees protecting the city (which broke  during the hurricane and flooded everywhere), the judge on the case had to rule in favor of the company because  there was a specific line of law that stated the company  workers could not be responsible for any damages that  may take place due to negligence of the up-keep of the  levees

ii. Limits on judicial coercion (limits on the court’s ability to implement decisions)

iii. Attributes

1. Vague vs. Specific – how the court is constrained by the law;  

“cheap talk”

2. Credibility of Signals – expending resources; “strong signals”

 b. The spatial model – type of model in political science and economics, which  aims to simplify strategic interactions among players; “spatial” because seeks to delineate preferences graphically

 c. Cultural constraints – limits on the courts that stem from elite or public  opinion

i. Limits on courts that stem from elite or public opinion

ii. Some laws are simply unacceptable based on cultural  

limitations

IV. What is the role of courts in US politics and policymaking?  a. Constrained Court View – courts are limited in their ability to make a  difference and thus “constrained”; constitutive politics (how politics are  framed If you want to learn more check out What is the ratchet effect?

 b. Dynamic Court View – courts are very active and effective in making change  and thus “dynamic”; distributive politics (how politics are effective)

 c. 1950’s Court (Foote article) 

i. Vagrancy law – laws dealing with homeless vagrants and their ability  to be arrested for loitering on private property

ii. Before the right to counsel was established, a judge in Massachusetts  arrested vagrants in no more than 17 seconds of a trial, sentencing  

them to three months in prison or working on the “goon squad”  

cleaning up the courthouse for no other reason than they “looked” like  vagrants; shows the extent of abuse the lack of the right to counsel  

can cause

 d. The last abortion clinic in MS 

i. An example of the courts not having the ability to implement Roe v.  Wade in the states once it was federally passed; MS closed all but one  of its abortion clinics due to the lawmakers of the state allowing  

protestors to harass them and to drain their funding within the state

V. Types of Government

 a. Adversarial Legalism  

i. Liberalism/Populism  Distrust Centralized Authority  Fragmented  government; Formal Rights and Party Influence

ii. Demand for Total Justice  Existing Structures of A-L and Distrust of  Centralized Authority  Rights-Based Welfare State

iii. Legalistic Culture, Entrepreneurial Lawyers, & Professors; role in  

policymaking is dynamic

1. Entrepreneurial Lawyers 

Notes by: Anastasia Barbato

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a. A term used to describe lawyers who make a living off of  AL by charging lots of $$ for their services and finding  cases to take to the courts

2. “Repeat Players” and “One-Shotters” 

a. RP – types of people who participate in the same sort of  

litigation very frequently and have the resources to  

litigate successfully most of the time (ex: Monsanto;  

used to being sued and therefore has an army of lawyers

and resources to crush any opposition repeatedly and  

smoothly)

b. OS – types of people who litigate infrequently and might  

only litigate once on a single issue; often do not have the

financial or influential resources as RP’s do to take on  

their opponents (ex: small farmer suing Monsanto for  

negligence of fields and Monsanto making them go  

bankrupt by litigating them to financial poverty)

iv. Positives: flexible, innovative, politically responsive

v. Negatives: costly, inefficient, unpredictable

 b. Bureaucratic Legalism 

i. Formal decision-making process; judges are the dominant players;  hierarchical organization; role in policymaking is constrained

ii. Positives: affordable, efficient, predictable

iii. Negatives: rule oriented, slow to adapt

 c. Expert Political Model 

i. Informal, hierarchical system; not based on formal law/legally binding;  hierarchy of power with the judge at the top

 d. Negotiation/Mediation 

i. Informal, party-influenced; outside of the courtroom and more  

leeway for bargaining; influenced by political associations

1. “Shadow of the Law” bargaining 

a. When cases/pleas are decided by the lawyers and  

litigants before trial even commences and before the  

judge even gets involved; often involves compromises  

and negotiations that may/may not be a threat to  

current legal frameworks preventing easy sentences on  

criminals

 e. Plea Bargaining 

i. Between hierarchical and party-influenced, informal; has a  

structure to it but is influenced by political associations outside of the  courtroom

 f. New Zealand Tort Law 

i. Between informal and formal, hierarchical; if someone broke their leg in NZ while working, they get automatic damages but only a limited amount; no suing

 g. US Tort Law 

i. Formal, between hierarchical and party-influenced; if someone  broke their leg in US while working, they can sue for higher damages  

and it can be politically contested, but it is in a formal setting

 h. Arbitration 

i. Between formal and informal, party-influenced; it is legally  

binding but participates in negotiation, which can have political  

associations

VI. Types of Politics

 a. Client Politics – benefits the few, costs everyone; such as a national tax where  the money goes to dairy farmers  

Notes by: Anastasia Barbato

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 b. Majoritarian Politics – benefits everyone, costs everyone; such as universal  healthcare  

VII. “Total Justice”

 a. The belief or norm that modern, technologically advanced societies can and  should… 

i. Compensate victims of unfair treatment, personal injury, and  

unexpected economic loss

ii. Prevent widespread social norms, such as environmental degradation  and discrimination

 b. Stems from the “American Creed” 

i. Centers around American individualism and an inherent distrust in  

governmental institutions