Court and Public Policy Midterm Literature Guide

Karp ch. 9

Judges are policy players, this involves interpreting statutes, shaping constitutional doctrine, rule creation via precedents, reshaping and overturning policy

Karp's 5 Ways Judicial Policymaking Happens

Remedial - fixing law (brown v board II)

Constitutional - Constitutional Doctrine, Reshape Gov.

Statutory - Interpreting legislature, what did lawmaker intend to mean

Common Law - Rely on precedent reason/knowledge to create law

Cumulative - Combining decisions of judges from similar cases to make law, looking at similar cases for decisions

Clark ch. 2

History of court curbing shows courts face pressure and can be contested despite (thought of) all powerful

Leonard

How courts respond to curbing is conditional to environment and state; political constraints on the court

Leonard's 5 ways of Court Curbing

Structural - attacks on selection, packing/shrinking, term limits

Resources - attacks on budget, staff, salary

Procedural - attacks on standings, burden of proof, appeals

Political - attacks on campaigns, elections, appointments, overall image

Compliance Based - attacks on state amendments, overriding court decisions

Mark et al

What judges are most vulnerable to curbing, Chief justices and swing justices. Chief justice is face of the court (cares about image) and has agenda setting power. Swing justices (commonly neutral) are easy targets for political blame, very visible members of the court and holds pivotal power.

Dinan

State Constitutional amendments are created/argued in order to check judiciaries power; Done typically to respond to federal Supreme Court ruling. Dangerous tactic b/c have the tendency to reduce judicial independence

Bosworth

How the legislature responds to courts striking down unconstitutional laws. Variation across states; legislature more likely to act if own state court strikes down rather than federal court; legislature response very dependent on court-legislature relationship and how independent of "sidelined" court is

Zschirnt

Talks about court packing. Expansion efforts arise when partisan actors see an opportunity to reshape judicial ideology, curb unfavorable policy/ruling, and influence further decisions. Weak judicial independence correlates to a higher risk of expansion. Important to understand that if FDR was able to achieve this during the New Deal, state supreme courts can be easily non-independent

Baum et al

Mobilization of interest groups. Policy on tort law shifts likely due to outside forces such as elections, campaigns, interest groups, etc.. Neutral judges are pattern less while Partisan judges are either pro plaintiff or pro defendant, "actor-linkage" decides if a judge is more likely to limit liability or not

Yates et al

Tort cases vary between states. Places such as urban/metro areas have higher tort rates due to higher likelihoods of civil wrongs. States that have more social policy tend to have lower tort rates while similarly states with limited liability also tend to have lower tort rates. Tort cases = futile if there is limited liability and high attorney fees

Margolis

Medical Malpractice article. Many states have damage caps on medmal cases; This limits liability and makes medmal cases much harder to argue or gain any financial gain from. What qualifies as a "health care provider" linkage to statutory interpretation which is who the legislature/court intends the caps to apply to since it is vague who really is protected under damage caps

Wilhelm

Judicial policymaking in education. Legislature falls short to reform, judiciary steps up to act as policymakers (using Karp's 5 ways), courts can do more than apply pressure, they can set agendas and force legislation to comply and give attention to the issues. Legislative outcomes follow after the courts rule. All of this varies across states due to factors such as judicial independence

Howard ch. 1-2

Courts can shape policy (education finance/reform) but work with and around constraints. Doctrinal limits, institutional limits, and dependence on actors in politics/legislature stop the judiciary from directly enforcing law. Local property taxes that fund schools cause disparities but courts can be actors by enforcing policy reform. However, while power to mandate is clear, reliance on legislature for implementation is needed.

Howard ch. 3-6

Education funding reform can be violent and risky. Touching peoples money (taxes), home values, and wealth can cause backlash. Judicial independence determines how active judiciary is in reforming education law. Diffusion is discussed, court decisions, policies, and strategies varying across states; Vertical Diffusion (federal to states) and Horizontal Diffusion (state to states)

Rodriguez Case

Poor Mexican American family sues state of Texas under 14th amendment (equal protection clause) for unequal school districts due to funding disparities caused by local tax funding. Lower courts side with the family but the case is reversed by the Federal Supreme Court, ruling that education is not a fundamental right with need for protection. After this, advocates for education reform went after state constitutions like Texas that stated "fair" and "equal" education for all. State Supreme Courts = the arbiters of education reform