Global Military Spending: A Chart and Graph approach.
Mother Jones: A Soldier of Good Fortune.
Foreign Affairs (A Journal worth subscribing to, if you are interested in International Relations): American Primacy in Perspective.
Limiting lawsuit abuses lowers costs from litigation, creates jobs in long run
Detroit Free Press: Available online here
Summary Points: The solution to the economic crisis is not more government spending but a reduction in costs associated with legal proceedings. Specifically, lowering the amount allowed in tort (harm) awards caused an increase in jobs in the states in which those reforms were in acted. Tort reform would benefit consumers because more variety would be available to them if the litigation risk to the manufacture were reduced.
Methodology critiques: If the economist did not account for all other factors that could have caused higher employment in those sectors then this is a spurious finding. It is especially strange that some of the ‘sinners’ are high income states and the ‘saints’ are low income states. This makes it even more suspicious. It could be that states that have higher income also afford high consumer protection laws because the relative cost is lower.
McCain Vows to Push Federal Judiciary to the Right
Wall Street Journal: Available online here
Summary Points: From McCain-Finegold to the Gang of 14, John McCain has been distrusted by legal conservatives. His policy speech to push the Judiciary to the right politically was seen as a means to assuage those fears.
In his policy speech, McCain claimed that the Judiciary was not subject to the same checks and balances that the Executive and Legislature were.
What are the checks upon the Judiciary? What is the constrained view of the court mean?
Additionally, this article provides some details about court case that can be used as starting points for possible papers: Griswold v Conn
Justices as Representatives
ABSTRACT: This study demonstrates that state supreme court justices are influenced by their specific electoral backgrounds and experiences, as well as general electoral conditions, when voting to uphold or overturn death sentences in the capital murder cases before their courts. Although previous research has established that electoral forces affect justices’ decisions not to dissent, this article suggests that electoral variables also influence justices’ decisions about who actually wins or loses the cases. On the basis of a probit analysis of death penalty votes in four supreme courts (Kentucky, Louisiana, North Carolina, and Texas) from 1983 through 1988, this study finds that single-member districts, narrow vote margins, being at the end of a term, and experience with electoral politics are associated with support for the death penalty, the position favored by the voters in these states. In addition, the model reveals that prosecutorial experience, term length, and murder rates within states also affect support for the death penalty. Most basically, the goals of judicial actors include personal as well as policy considerations, and the pursuit of these goals is promoted inhibited by particular types of institutional arrangements.
Basic point: Electoral considerations affect judge’s rulings. Prior literature claimed this not to be the case.
Which side of the debate to you end up? Why? Reasons?
Living the Law
Henry Stimson articulates the idea that some American lawyers see themselves as participants in government by practicing the law. Defending the Constitution is the duty not only of the government, but also all of the lawyers and judges that practice law on a daily basis.
A functioning legal order is fundamental to a political and economic order. Regularity of outcome produces a set of expectations that allow for cooperative behavior. Lawyers of the author’s generation saw the law as a helping profession. But not only to the client but to the public trust.
This can be framed as a free-rider problem. Review free-riding…
Elihu Root: “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.”
Because lawyers can individually benefit from defending clients who have broken the law, they do not have the incentive to tell clients they are on the wrong side of the law. Even if they did, another lawyer may well take the case after the client is refused by the first lawyer.
A la de Tocqueville, the civil community of lawyers helps to engender trust among the citizenry. In recent years, the author argues, this has been eroded.
The history of the legal profession is marred by discriminatory practices: Anti-Semitism, Anti-Catholicism, racism, biased practices against universal justice.
Charges of Elitism have undermined the idea of lawyers being officers of the court. Now they are hired guns. But this is a contradiction: the Hobbesian world is exactly why the law and the legal system were developed, so having a no-holds-barred approach just reverts us back to this situation. Lawyers serve the law first and foremost.
Original Jurisdiction: 1. Cases between the United States and one of the fifty states. 2. Cases between two or more states. 3. Cases involving foreign ambassadors and other ministers. 4. Cases brought by one state against citizens of another state or against a foreign country.
Article III of the Constitution says that judicial power only extends to Cases and Contoversies. This means that an actual event must trigger a case, not a hypothetical one.
Parties must have what is called Standing or that they have a major stake in the outcome of the dispute. Most of the time injury is the standard by which standing is granted. Injury can be physical, economic, or aesthetic. Class action lawsuit are where a large number of people have suffered the same harm and combine their claim under one lawsuit in order to make the trial/workload on the courts reasonable.
Mootness is whether a case still can be rectified. Discretion makes this point very delicate.
The Supreme Court will often choose cases that have conflicting resolutions by lower federal courts. This stems from the fact that upheld decisions are future precedents for other courts.
Writ of Certiorari or Cert for short is the order given that a case may be reviewed by the Supreme Court. Once 4 of the 9 Justices deem the case compelling, then the case is said to have been granted cert. Only about 1 in 100 are granted cert.
Solicitor General is the top government lawyer. He or she is involved in about half of the cases brought before the court because of the SG’s role in representing the Federal Government and in reviewing important aspects of cases.
Amicus Curie (“Friend of the Court”) or Amicus Brief is a document submitted by anyone, most of the time lawyers, which argues a particular position in cases before the court. While the text only talks about the SG submitting briefs, it can be done by any party allowed to do so by the court.
Oral Arguments, Briefs, and Opinions: Lawyers before the court submit written arguments in the form of briefs. Next oral arguments are heard. Each lawyer has 30 minutes. Most of the lawyer’s time is spent answering questions of the Justices. The Lawyers have little control once oral proceedings begin. Lastly, through conference on Wednesday or Friday, the case is discussed in private. One Justice in the majority is chosen to write an opinion, or the ruling in the case. Minority Justices can each write a dissenting opinion or one of the minority can write a group opinion.
Most of the time, the majority’s reasoning is unified. When it is not, a secondary majority opinion called a Special Concurrence will be offered.
NOTES are from the Lowi text.
Trends and Issues in the State Courts: Challenges and Achievements (Rottman)
Six trends are affecting state court systems:
1. Rationalization of court administration. Meaning that the structure has been streamlined in a large number of states. Funding has moved from the local level to the state level. Judges of general jurisdiction have become more professional and grown in number.
2. Though international law has shifted some problems away from state courts, judges find themselves even more overwhelmed with cases requiring their services. A large portion of cases involve drugs. Additionally, much of the independence judges had has been stripped by state legislatures. Those legislatures remove sentencing discretion in order to limit a judge’s ability to craft his or her own decision.
3. Many states are experimenting with allowing citizens to become more involved in the justice process. Reducing the dependency of the citizenry upon lawyers, courts have started to offer services that make the whole process more transparent. From legal advice to court ratings systems, the state court systems have actively engaged a large portion of the public who need judicial service.
4. Effective court services, especially court services related to drug rehab, are being spread around the country on an ad hoc basis. Where new procedures are found to have a positive impact, other state court systems are able to copy and implement similar procedures.
5. Mainstreaming refers to the implementation of problem-solving principles developed in drug court among the generalist courts for normal matters. Allowing justice to seek solutions instead of punishment would do much to help to eliminate recidivism.
6. Legislatures and Judiciaries still fight over funding and decisions. The judges ability to make impartial decisions is sometimes impaired by threats from the legislature. This will continue to be a challenge to courts as it has always been.
State courts are burdened with the institution of election of judges. In Republican Party of Minnesota V White the U.S. Supreme Court found that judges could campaign and make statements about their stated beliefs. This poses a challenge to the perceived objectivity of judges, since stated opinion prior to presentation of the evidence is a contradiction of the aim of blind justice.
Additionally, judges often are under pressure to pander to voters to be reelected, which can severely harm justice meted out.
Can you think of why or how this might be the case?
History and Org of State Court Systems:
They are not neatly divided into 3 tier systems like the Federal system. Each state has the right to choose the structure it wishes and the earliest forms can be traced back to colonial times. Names are not set as district, circuit, and supreme courts can all mean basic trial courts.
They are responsible for most of the law and litigation in which normal citizens find themselves. This fact remains vital when considering the importance of state court systems.
During late colonial times, court procedure shifted away from the informal/arbitrary ones to English common law ones brought over by train lawyers from Britain. Judicial independence was molded in the early part of the new nation’s history with public will and legislatures fighting against judges. Eventually, state courts found solid ground and independence as we see today.
The complexity that came to the United State with the advent of the Industrial Revolution greatly increased the need for judicial proceedings. The number and variety of cases grew and the need for new law and new courts greatly expanded the courts system. This was solved in two methods. First, jurisdictions were split geographically. Or, second, courts became highly specialized, only dealing with a narrow set of legal issues.
Some states have moved to unify courts into one system, others into major and minor courts, and still others have left the complexity alone. Appellate courts only exist in about 40 of 50 states. They are meant to relieve the pressure placed on the supreme court of each state.
See article for discussions of courts of last resort, juvenile courts, and administration of courts.
Remember, state courts see most of the court cases in the United States – over 17 million in 1998 alone.
Structure of State Courts:
“State court judges are selected in a variety of ways, including
- appointment for a given number of years,
- appointment for life, and
- combinations of these methods, e.g., appointment followed by election.” (http://www.uscourts.gov/outreach/resources/comparefedstate.html#structure)
“The federal courts and American Government”
A summary of essentially how the Federal courts system is constitutionally situated within the US Federal Government. Discusses the institutional rules and traditions governing the form and procedure of Federal courts: Trial, Appellate, and Supreme. Doesn’t add much that isn’t covered by the Lowi text, but it does distill a lot of factual information for easy review.
“Structure of the Federal courts”
Discusses the levels of Federal courts. Congress is charged with creating lower courts and has traditionally chosen Trial courts (lowest; first level) and Appellate courts(Middle; Appeals or Mixed Jurisdiction) as the feeder courts for the Supreme Court. There are 94 District Courts and 12 Judicial regions. In addition to ‘normal’ courts, Congress is able to enact new courts to deal with any transgression of the law. Such examples include bankruptcy courts and federal claims courts. The Supreme Court has 9 members by tradition, though this can be increased or decreased
“The Jurisdiction of the federal courts”
Federal Courts may not seek out cases in order to make a ruling. Instead a case must be brought before them involving litigants who are deemed to have “standing” with the court’s jurisdiction (geographical or legal domain). The case must not be “moot”, that is, the harm must be on going so as to be rectified. Lastly, the court must have authorization to make judgments within the particular area of law. “In general, federal courts may decide cases that involve the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments.” (US Courts, http://www.uscourts.gov/understand03/media/UFC03.pdf, pg. 10) Though the Federal courts system is important, much of the day to day contact citizens have with courts in America are in state courts.
“The federal judicial process in brief”
Read for a more detailed account of each of the above court processes.
Race and the War on Drugs:
Drug crimes are the major cause in the increase in the US prison population. A large portion of offenders are minorities or poor citizens. Drug laws are skewed to be more harsh on offenders involved with crack cocaine which results in minorities being sentenced to harsher sentences since crack cocaine usage remains dominate in minority communities. Locking up offenders seems to be counter-productive since most offenders are not kingpins but low level users. Rehab is prescribed by the author instead of wasteful prison time.
If you are interested in this topic, see me for additional literature.
Courts and Affluence in American Society:
Poverty in the United States has created a large gap between the Judiciary, with its extensive but weak discretionary powers, and the underclass. Justice requires “Equal Justice Under the Law” and, as the author argues, it is not often possible to achieve justice when a defendant is poor. Though disproportionately affecting minorities, poverty is a major threat to proper justice and the stability of U.S. society. Often Judges are unable to push deeper into societal problems because they lack understanding of more profound causes of crime.
Does the author supply any solutions? What is societal reasoning for wealth disparities?
Alexis de Tocqueville (1835): Vol. 2 Part II, Chapter 5 On the Use that Americans Make of Association in Civil Life
Tocqueville mainly is interested in the sorts of social organizations that form a public life outside of politics. In that he is interested in religious, moral, grave, general and trivial associations (organizations). In these groups the early Americans erected all manner of public works outside of the realm or aid of government (though this is not universally accepted, see Skocpol).
Tocqueville is shocked by the number and fashion by which Americans associate. What makes these associations special? 1. Numerous 2. Voluntary
In democratic societies associations are required. Additionally, they must have a large number of associates. Government, accordingly, cannot replace all of the activities provided by associations in a democracy, just as it could not replace all of the industrial relations.
In a democracy, no class exists to enforce a model upon the rest of society, because of the equality of condition. Tocqueville provides the example of 100 thousand men pledging sobriety as a different method of bringing about social change/improvement.
Famous quote: “In democratic countries, the science of association is the fundamental science. Progress in all the other sciences depends on progress in this one.”
Robert Putnam’s Tuning in, tuning out: The Strange Disappearance of Social Capital in America
Putnam has developed a method by which he measures civic participation of the kind that Tocqueville observed. Among the factors Putnam is interested in are: Membership in diverse civic associations (PTA, Elks, League of Women Voters, Red Cross, Unions, and sports clubs), Time-budgeting on socializing, Participation in Political campaigning. Sifting through the data, controlling for many factors that might influence civic participation, Putnam claims that the rise of television is the cause in the decline in civic engagement.
Theta Skocpol’s Unraveling from Above
Skocpol is skeptical of the Elite American response to the decline in civic life. Instead of seeing the intrusion of government as the cause of this decline, Skocpol claims that the history of American civic life is bound tightly around an alliance among the government, elite participants, and the general public. The decline is more complex than just an increase in TV viewing. For her, the move away from federated civic associations to the nationalized groups like AARP changed the way in which politics was practiced. It created a disconnect between the public and the elites. Now membership was no longer face-to-face but rather a letter in the mail and a check sent to a large national interest group. While the introduction of TV had an impact, that impact was to change the methods of politics. Thus, the destruction of civic life was a separation of average citizens from the civic organizations that would have connected them to elites.
Gerber and Green “The effects of canvassing, telephone calls, and direct mail on voter turnout: A field experiment”
“Face-to-face contact raises turnout by 9.8 percentage points, and direct mail raises turnout by .6 percentage points for each mailing… One of the most surprising results to emerge from our experiment is the ineffectiveness of telephone appeals.”
Verba, Schlozman, Brady, and Nie “Citizen Activity: Who Participates? What do they say?”
“Citizens who are active and those who are not are quite different in their demographic attributes, their economic needs, and the government benefits they receive. These disparities are exacerbated when we move from the most common political act, voting, to acts that are more difficult, convey more information, and exert greater pressure. With respect to the volume of activity, the disparity is especially great for electoral contributions: the advantaged account for the overwhelming share of dollars donated to campaigns.”
For Verba et. al, the result is not surprising. Those who are economically better off or have less dependence on the government for basic needs are more likely to participate. Those on programs like food stamps, medicaid or other means tested programs are underrepresented in political participation.
November 12th Campaigns and Elections
Lowi Text: pages 438-443
–Why? To avoid “a unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive.” Federalist #71
President: Electoral College
1. Almost all states (48 of 50) award all electoral votes by simple state majority for President.
2. Number of Electoral Votes determined by number of representatives in Washington (2 plus # of House seats)
3. If none wins the needed 270 Electoral College votes, then the House votes by state on the top three candidates.
Key point: The Electoral College system narrows the campaigning from all 50 states to just those states that can be shifted from one candidate’s column to the other. Hence the predominate focus on battleground states.
Frequency of Elections
–When? 1/3 of the Senate is elected every two years.
–Why? To slow the passion of the electorate, and limit the “rapid succession of new
Size of Electoral Districts
1. Small districts would focus interests on local issues
2. House members’ fate would be tied to local peculiar issues not national ones
3. Small districts would geographically fragment possible mass movement groups from attaining representation.
–What? Australian Ballot
–How? It made voting uniform, and therefore allowed for secrecy for voters. Candidates mattered more now than did parties. Voters were insulated from outside pressures and intimidation.
Key Question: What features and how do the institutions of the American system militate against party discipline? How do they work in favor of it?
John Lott et al.
Lott argues that the public financing of Presidential campaigns is broken. He cites as evidence the ethical questions that swirl around election time regarding the contortions candidates perform to avoid restrictions. Mr. Obama’s withdrawal from the public financing system during the just-ended campaign has caused a flurry of proposals to close loopholes. Lott claims that this effort to close such loopholes is doomed, and that the various ways around spending restrictions is only limited by one’s imagination.
Remember – Buckley v. Valeo said that limits on spending is unconstitutional…
Key question: With the first amendment in mind, is money ‘speech’?
Fundraising reform needed: Our View: Publicly Financed Campaigns must be made competitive
The League of Women Voters and others argue that in order to maintain the public financing system, the amount of money offered to candidates must be increased. Without an increase candidates will defect from public financing and do damage to the post-1976 Presidential campaign consensus rules.
Key question: What are the arguments for and against publicly financed campaigns?
Entering the Arena? Gender and the Decision to Run for Office
A critical void in the research on women’s underrepresentation in elective office is an analysis of the initial decision to run for office. Based on data from our Citizen Political Ambition Study, the first large-scale national survey of potential candidates, we examine the process by which women and men emerge as candidates for public office. We find that women who share the same personal characteristics and professional credentials as men express significantly lower levels of political ambition to hold elective office. Two factors explain this gender gap: first, women are far less likely than men to be encouraged to run for office; second, women are significantly less likely than men to view themselves as qualified to run. Our findings call into question the leading theoretical explanations for women’s numeric underrepresentation and indicate that, because of vestiges of traditional sex-role socialization, prospects for gender parity in U.S. political institutions are less promising than conventional explanations suggest.
Jacobson Chapters 2 and 4
The institutional structure affects the strategies available to candidates to win office.
Among these are Congressional districts, Partisan Gerrymandering, Racial Gerrymandering, Election Laws (e.g. ballot type or one day voting effects), Political Parties, Social and Political Contexts (Geographical, Population, Economic Base, Inceome, Communications, Ethnicity, and Age)
Key Question: How do candidates for Congress win office?
Some Answers: Money and Organization
Money comes from Political Action Committees, Party Money, Self-finance; Candidates use tactics and tools of fundraising to convince donors that they can win their race.
Organization favors incumbents because of a number of factors. Winning begets winning. Those in power are giving bigger contributions from donors. They have won campaigns before and so know their districts. Funding advantage allows for better campaign organization and media saturation. Campaigning continues throughout the term for incumbents. Something like 97% of incumbents are re-elected.
Campaign Message: Positive or Negative
Politicians attempt to frame the debate, to fight on topics favorable to their candidacy. Negative advertising is effective at diminishing opponent’s image.
Senate campaigns are more competitive than House races.
Key Question: What are the factors that help incumbents retain office so often? Why is the Senate less secure than the House?
Presidential Elections American Democracy By Wayne
What are the criteria by which a Presidential Election is democratic?
1. Universal Sufferage
2. One person, one vote
3. Informed Voter
Elections and Governance: How well are they connected?
Presidents are often unable to turn victory into real action owing to a number of institutional factors.
What are those factors? How does a President achieve his goals? Remember prior readings.
Key Question: What are the advantages and disadvantages of the Electoral College?