Chapter Topics

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(No Transcript)
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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
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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

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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

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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)

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Third Party Alternatives to Court

• Settlement Role
• Mediators work to get both sides to see the
  others 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

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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

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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 courts order will
  be final and controlling.

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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

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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

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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

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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

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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

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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

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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.)

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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

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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

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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

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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.

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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

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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

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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 courtspassive and reactive)
• expert legal staff (knowledge wins)
• extralegal publicity (ability to share message
  and influence decision makers)

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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

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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
  groupswidely used

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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

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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

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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

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Televised Coverage

• Court TV began in 1991!
• concerns were about whether courtroom
  participants would perform for the cameras
• this concern still exists but doesnt 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

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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 systemproviding wide dissemination of
  legal information that used to be held by small
  numbers of lawyers
• technology will continue to challenge the courts

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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 tremendouslyparty capability,
  type of adjudication and scope of influence