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Chapter Topics

Chapter Topics. Legal Mobilization Court Caseloads Party Capability The Adjudicatory Process Traditional versus Policy Lawsuits Interest Groups in Court The Media and the Legal System. Legal Mobilization.

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Chapter Topics

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  1. Chapter Topics Legal Mobilization Court Caseloads Party Capability The Adjudicatory Process Traditional versus Policy Lawsuits Interest Groups in Court The Media and the Legal System

  2. Legal Mobilization • Legal mobilization refers to the process by which a legal system acquires its cases • the state (public actors) and individual litigants set the agenda of the judicial branch • the United States judiciary is largely passive, requiring action by others for it to become involved in disputes • what becomes a legal dispute is a very important question

  3. Third Party Alternatives to Court • Courts are merely one place where disputes are resolved. It is useful to compare courts to other mechanisms citizens use to resolve disputes. • Identifying Characteristics • some disputes are resolved by people in a community with special (high) standing (e.g., religious leaders) • others are resolved by specially trained arbitrators or mediators • more specialized than judges

  4. Third Party Alternatives to Court • Private versus Public • level of connection to the government • many dispute processing institutions are private (e.g., student discipline boards) • may lack authority to enforce their decisions • the police are an example of a public dispute resolving mechanism • police spend a great deal of energy trying to maintain public order (versus enforcing the law)

  5. Third Party Alternatives to Court • Settlement Role • Mediators work to get both sides to see the other’s point of view • Mediation is where the parties reach an agreement that is satisfactory to each and with which they comply. • Arbitration is similar to mediation except the parties agree ahead of time to be bound by the decision • Courts make decisions and enforce them others try to encourage compliance

  6. Third Party Alternatives to Court • Level of Formality • Some attempts to resolve disputes work with a very informal structure (e.g., marriage counselors) • Others, like courts, have very formal rules and procedures • Courts are among the most formal institutions compared to arbitration, mediation and other private citizens

  7. Third Party Alternatives to Court • Control by the Parties • dispute settlement mechanisms offer the parties varying degrees of control over the outcome • during mediation the parties must agree to the outcome or there is no resolution, in arbitration they agree in advance (i.e., give up some control), and in courts there is very little control by the parties. The court’s order will be final and controlling.

  8. Court Caseloads • most disputes will never turn into a lawsuit! • are we experiencing a litigation explosion? • court caseloads go up and down over time, resulting in reaction by the judiciary • not all cases are the same, we must look carefully at judicial statistics • of the 90 million cases filed every year, approximately 60% are traffic related, misdemeanors or small-claims

  9. Party Capability • Court cases differ in the capabilities of the parties involved • Galanter (1974): resources are important • One-shotters – litigants who only occasionally appear in court • Repeat players – bring cases frequently • some may refer to the two groups as the “haves” (repeat players) and “have-nots” (one-shotters) to denote primarily their financial resources/experience

  10. Party Capability • Repeat players are experienced in court and have considerable resources, therefore they are more likely to win in court • a lawsuit may pit repeat players v. one-shotters (criminal cases), one-shotters v. repeat players (personal injury lawsuits), one-shotters v. one-shotters (divorce), repeat players v. repeat players (government against government cases) • Galanter offers a theory of case disposition involving party capability – widely tested/used

  11. Routine Administration • many cases filed in court are not complex, in these cases routine administration means the court has no disputed question of law, the court is merely asked to formalize a settlement • uncontested divorce is an example (other examples may include probate or mortgage foreclosure) • these cases are resolved quickly and with relatively little effort by the courts

  12. Procedural Adjudication • cases that reflect the adversarial model • Procedural adjudication involves four key elements: • judges and lawyers search for applicable law • relies on formal rules of evidence • exhaustive exploration of all facts, evidence, etc. • assumes all parties are preparing for trial

  13. Procedural Adjudication • Tort cases are a typical example of procedural adjudication • lawyers spend time preparing for trial, but rarely end up in court– but prepare as if they will • The higher the stakes in the case (criminal case with heavy penalties or torts) the more likely the parties are to engage in procedural adjudication

  14. Decisional Adjudication • involves cases where the law is clear and the facts are straightforward • in decisional adjudication judges seek to rapidly establish the relevant facts and expeditiously apply the law • emphasis is on the quick resolution • many litigants appear pro se (representing themselves) • Small-claims courts are an example of decisional adjudication (others are traffic cases, ordinance violations, etc.)

  15. Diagnostic Adjudication • focuses on determining the cause of the problem rather than just settling the case • often involves nonjudicial personnel in defining issues (e.g., professional experts such as psychiatrists or social workers) • a good example is juvenile court where the focus is on what is best for the juvenile • sentencing decisions also involve diagnostic adjudication • a difficult area for courts because the law offers less guidance in this area

  16. Traditional versus Policy Lawsuits • focuses on the scope of the lawsuit • Traditional litigation involves (most case): • Single plaintiff and defendant • litigation is retrospective • plaintiff seeks compensation for past wrongs • lawsuit is a self-contained episode • once case is over, judicial involvement ends

  17. Traditional versus Policy Lawsuits • Policy litigation involves (fewer but important cases): • multiple plaintiffs and defendants • litigation is future oriented • plaintiff seeks more than compensation • lawsuit has broad ramifications, affects other parts of society • the court may stay involved

  18. Traditional versus Policy Lawsuits • policy litigation is growing in importance and these cases attract a lot of attention • may be private or public • in the private sphere are recent cases involving automobile manufacturers and fast food restaurants • in the public sphere are cases against the government such as Brown v. Board of Education (1954) involving racial discrimination in public schools. Other cases include, abortion, prison conditions, etc.

  19. Interest Groups in Court • Interest groups are an important part of legal mobilization in the United States • they might sue to promote the interests of their members • offer advice to the courts on issues presented in cases • recommend possible judges to office holders • mobilize voters in judicial elections to influence the judiciary

  20. Why Interest Groups Litigate • traditionally interest groups litigate because they are disadvantaged in the legislative or executive branch • courts are seen as better protectors of minority rights • recently, interest groups have been going to court because they see opportunity to influence policy (favorable judges) • powerful groups go to court to enforece gains won politically

  21. Interest Group Resources • five resources are important to interest groups in the courts: • money $$$ (money wins) • support from other organizations (strength in numbers) • longevity (victories come slow and over time in the courts—passive and reactive) • expert legal staff (knowledge wins) • extralegal publicity (ability to share message and influence decision makers)

  22. Interest Group Strategies • interest groups use four different strategies to influence courts: • Direct Sponsorship • interest groups may directly sponsor a case, providing lawyers, paying for expenses, etc. (Brown v. Board of Education 1954) • most research has focused on the high profile case sponsorship of interest groups • mixed success because so few cases make it to court

  23. Interest Group Strategies • Amicus Curiae Briefs (friend of the court) • filed by an interest group to make their views known to the court • offers possible legal arguments, data, expresses a point of view about how a case should be resolved • less expensive (considerably) than case sponsorship • an increasingly popular tool of interest groups—widely used

  24. Interest Group Strategies • Class Actions • a lawsuit brought by a person or an interest group on behalf of all people similarly situated • are common among policy oriented lawsuits • interest groups help sponsor the case and mobilize the individuals in the class • often used in product liability cases • a source of many “litigation explosion” concerns

  25. Interest Group Strategies • Judicial Nominations • interest groups would like to determine who gets appointed/elected to the bench (thinking this will lead to a favorable judicial climate) • interest groups are increasingly active at the federal and state levels in trying to influence who becomes a judge • Supreme Court vacancies are now a major focus of liberal and conservative interest groups

  26. The Historical Relationship • the relationship between the medial and the courts is important • the sixth amendment protects public access to trials • print access was guaranteed early • but other forms of coverage, pictures, television, internet, etc. have had more difficulty getting established • balance free and open access to court activities with fair trial concerns

  27. Televised Coverage • Court TV began in 1991! • concerns were about whether courtroom participants would “perform” for the cameras • this concern still exists but doesn’t appear to have become a reality • most state courts allow some type of video and audio recording • federal courts continue to ban cameras and audiotaping devices

  28. New Uses for the Internet • the internet is the latest technology challenging courts to look forward • courts are using the internet to communicate to the public and increase understanding of the legal system • the internet is also being used to mobilize the legal system—providing wide dissemination of legal information that used to be held by small numbers of lawyers • technology will continue to challenge the courts

  29. Conclusion • legal mobilization can fundamentally change public and private life • disadvantaged and advantaged groups turn to the legal system • increasingly the legal system is viewed by interest groups as a place to try and influence politics • court cases vary tremendously—party capability, type of adjudication and scope of influence

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