Legal Studies 1010 Midterm

Natural Law

Moral, unchanging principles innate in human nature and are found through processes of reason, rather than mandates and laws. This was proposed by William Blackstone. The belief is this is the highest form of law.

Legal Positivism

Theory that law is a social construct created by humans and not something innate/moral. Law is made by the members of society and they decide what they value and how they want to enforce it. These laws are typically determined by people in higher forces of command. Laws come from legislative and judicial decisions.

Legal Realism

The law reflects judicial rulings and previously observed cases. It views the law as a prediction of what judicial members will do in a scenario, rather than concrete consequences/enforcement. It emphasizes sociocultural factors influencing legal decisions.

What is a cynical view of Legal Realism

This is essentially politics because the judges are being influenced by their own personal decisions. Who gives them the power to control our legal system based on their biases. 

What is the function of law

Maintain stability in the socioeconomic political system while also permitting change via

• establishing a set of rules to resolve criminal and civil issues

• protecting ownership of property and facilitating voluntary agreements

• ensure that political action and leadership changes are done via political action rather than rebellion and rebellion

Tort Law

Civil Law related body dealing with injuries caused as a result of one’s misconduct. Aims to provide remedies, mostly through monetary damages.

Founded under the basis that because you have personal knowledge of something that can harm someone, you are responsible to mitigating that harm for others.

What is the benefit of Tort Law

Because people want to avoid monetary fines, they are more likely to regulate their own activities = more stability. This avoids larger conflict by avoiding lawsuits and encouraging other companies/people to follow laws to ensure they aren’t sued.

Criminal Law

the body of law that defines criminal offenses and the respective legal punishments

Purpose: punishment, deterrence, rehabilitation, order

Public Law

Substantive law that addresses the government’s rights and powers and its relationship to individuals and groups. deals with the relationship between individuals and the government covering areas like constitution, administrative, and criminal law.

Tort liability

Legal accountability for civil wrongs that causes harm to another person. This is through a lawsuit, rather than a criminal proceeding. Main types are negligence, intentional torts, and strict liability.

Private law

Law governing individuals and legal entities (corporations) in their relationships with each other. Regards contract law, corporate law, and tort law

Civil Law

part of private law and defines duties between parties and governs disputes between parties.

purpose: compensation (torts) and deterrence

what is the difference between criminal and civil law, especially regarding the standard of proof?

criminal law:

evidence needs to be beyond a reasonable doubt. society (esp jury) defines the rules and offenses that the government pushes/enforces.

civil law:

there needs to be a preponderance of the evidence. this is a lower standard of proof. focuses on negligence and compensation rather than crime.

what type of law system is the US and what does that mean?

common law system: a body of law that is based on previous case precedent/judge-made law. The precedent is used to rule on later issues.

stare decisis

is the legal principle meaning to stand by decisions. this is used to support the incremental evolution of law in a stable/predictable manner, as developed under common law.

Constitutional Law

Public law! It is the overarching guidance for a particular level of government (i.e. state or federal). Establishes governmental structures and distributes this power between the various branches, allowing certain restrictions on the government overreach. Specifies what rights and liberties an individual possesses.

Legislative Law

Law is tied with the political process here, as statues are passed by legislative systems (State or federal). Typically used in response to rapid, or dramatic changes: addressing technology, society, and economics.

i.e. bills, regulations, resolutions

Administrative Law

Public law! Legal power is derived from legislative bodies (i.e. Congress) and governs the government entities and procedures outside of court and legislation.

i.e. creation of programs and committees regarding Public health, safety, welfare.

i.e. FDA organization

What are different methods of Statutory Interpretation (interpret and apply legislation)

textualism (looking exactly at what the words say/the standard)

purposivism: focus on the underlying purpose of law rather than just the literal text. considers policy context at the time of writings creation to determine what the founders were thinking

rules vs standards: clear directives vs case-by-case basis in application

cultural contexts: look at the cultural elements at the time of creation

precedent: looking at the previous rulings to influence your decision

judicial deference to administrators: allowing people who specialize in that field to take control of the decision

Case Law (and what does it reveal)

Law made by judges in judicial decisions. This is known as common law and is what the US runs on. It is used later on a precedent.

• the ambiguity of law

• the fact-intensive nature of law

• the importance of stare decisis

Holding

the court’s legal decision when taking into account the relevant facts. it’s the principle of the case and becomes later precedent

Dicta

everything else/other issues that the party may be raising that are not CRITICAL to the main holding or argument. This is also anything the judge might comment on about the case that aren’t uber relevant to the ultimate decision.

Purpose of Litigation/Civil Procedure

Litigation is the primary and earliest means to resolve disputes (which is the key purpose of establishing law).

Resolution of civil law disputes are achieved through civil procedure, which want to ensure substantive and procedural fairness, while still being efficient.

Class Action Lawsuit

A lawsuit that is presented in both the federal and state level courts and combine multiple plaintiff cases against a shared defendant. This is because the plaintiffs’ situations are similar and their individual rewards/damages aren’t substantial, but combined is worth a lot

What happens to individual suits if the class action law suit wins?

Then each individual case is also settled with the representative/primary case. They don’t need to argue their own cases.

What does preponderance of the evidence mean?

It’s more likely true than not true

In a case, who is responsible for arguing why the case doesn’t warrant class action, and who is the burden on?

The burden is on the plaintiff and it’s the defendant's job to say why the case doesn’t warrant  a class action

summary judgement

• Parties asserts that no relevant issues of fact to be determined at trial and court can make a decision as a matter or law

• Court can decide the whole case or part of the case reducing the issues to be tried

• Summary judgement decisions can be appealed

Pleadings Phase

designed to provide notice to parties & establish/narrow issues of disputed fact or law

What occurs during the pleadings phase

1. the plaintiff files a complaint which initiates a complaint

   1. you have to differentiation between issues of fact and law

   2. the plaintiff creates a statement of the claim w/ supporting facts that the plaintiff(S) suffered damages and deserve relief

   3. During tort law: must prove the plaintiff was emotionally distressed and demand specific relief

2. court issues a summons and a copy of complaint which is served on the defendant

   1. Defendant must file an answer to the complaint within 30 days

   2. the defendant can answer:

      1. admission of guilt (yes or yes but)

      2. denial of knowledge/say I didn’t know when I did it

      3. Affirmative defenses: attempt to drop case on groups of incorrect structure unrelated to the case itself

what are the potential answer responses of the defendant

Admissions (yes or yes but)

Denials (denial of knowledge or say I didn’t know)

Affirmative defenses (attempt to drop case on groups of incorrect structure unrelated to the case itself)

• Lack of contract formation

• statue of limitations

• contributory negligence

• assumption of risk

What are examples of affirmative defenses

Affirmative defenses (attempt to drop case on groups of incorrect structure unrelated to the case itself)

• Lack of contract formation

• statue of limitations

• contributory negligence

• assumption of risk

What are plaintiff counterclaims

a reply to the affirmative defenses

Pretrials motions

1. Statue of limitations (usually 10 years)

2. Lack of subject matter jurisdiction

3. Lack of personal jurisdiction

4. Failure to state a claim upon which claim can be granted (Federal Rule of Civil procedure 12(b)(6))

These methods are used to get cases out of the legal system early so that resources and time are not necessarily wasted on them.

• Plaintiffs can amend their complaint, but if it happens excessively, the entire case can be revoked

Discovery

• Preserve relevant evidence and focus recollection of witness

• Allows parties to understand strengths and weaknesses of each other’s cases

• Raise claims or defenses not apparent at the time of complaint’s filing

• Narrow factual or legal issues in dispute during later stages of litigation or at trial

• Enable parties to see the benefits of settlement

• Emphasis on early required disclosure of information under Federal Rules of Civil Procedure

What is the benefits of discovery

understand where the case is weak vs strong which influences their litigation strategy and reassess how much they think their claim is actually worth.

• can narrow the facts that are in dispute

• defendants can find defenses they didn’t realize they had

Discovery includes

• Depositions: sworn testimonies taken out of courts

• Written interrogatories: party gives a specific question to the other side and the opposite side must provide a sworn answer

• Production: documents and objects in possession of opposing party or by court ordered subpoena of a third party

• requests for admissions of fact

What is the purpose of courts and how

To impose checks and balances to address risks inherent to discovery between adversarial parties (cost, scope, and delays)

• Judges/magistrates supervise the discovery process

• there are discovery timelines and you can face fines if you don’t reveal your production within that timeline

How can parties stall production

ask for electronic documents of information/facts that were from 20 years ago

What is summary judgement

• After discovery, either party can move for summary judgement

• parties asserts that no relevant issues of fact to be determined at trial

• judges may use pre-trial conferences to encourage the parties to settle the case

Pre-Trial Conference

• Conference between the judge and attorneys to assess the status of the case

• Decide preliminary matters, identify witnesses and documents to be presented at trial

• Judges may often use pre-trial conference to encourage the parties to settle the case

Trial Process

1. Jury selection: voir dire, challenges for cause and peremptory challenges

2. Opening Statements

3. Direct/cross examination of plaintiff’s witnesses and introduction of evidence

4. After plaintiff’s case, defendant may move for a directed verdict

   1. Determination by the judge that even if plaintiff’s evidence presented was ture there is an insufficient basis to find in favor of plaintiff

5. Direct and cross examination of defendants witnesses and introduction of evidence

6. Closing statements

Judge’s Role

• Limits what the jury can hear during a trial

  • The rules of civil procedure restrict what issues can be decided by a court

  • Rules of evidence restrict what info can be presented to a jury

• Decides issues of law

  • Judge instructs jury on what rules of law to apply and what those rules mean (aka Jury Instructions)

  • Rules of civil procedure allow judge to take away cases from jury (directed verdict/judgement notwithstanding the verdict)

    • Directed verdict: special case where the judge instructs the jury to ignore a party’s case because they didn’t provide enough evidence to support their claim

    • Judgement notwithstanding the verdict: evidence is so clear that reasonable people could not differ as to outcome of the case

• Jury decides issues of the facts

Post Trial

The Losing Party can make a motion for a new trial

1. Judge committed prejudicial error during trial

2. Verdict is against weight or evidence

3. Damages are excessive

Potential Appeal Process

De novo review

“from the beginning” review of law and errors of fact reviewed under a clearly erroneous standard

What Court system does the U.S. have

dual court system. the plaintiff decides where the case is heard

Factors of the Federal Court System

Article 3 of Constitution: vests judicial power in the SCOTUS and the special courts establish by Congress

Courts of limited jurisdiction means

having jurisdiction over

• exclusive federal issues

• concurrent federal questions: both states and federal systems have authority over the issue

• federal judges appointed for life by the U.S. Prez and confirmed by the Senate

What are qualities of State court system

• State courts are broad/general jurisdiction

• Each state + DC has a state court system

• Judges are elected and the structure of courts by state varies

US District Courts

the general trial courts in the federal courts

• 94 US judicial districts: about 50% of states have multiple districts

• Judicial districts may have multiple district court judges presiding in the district

• Civil and criminal matters heard and DC has legal/equitable powers

US Circuit Court of Appeals

reviews appeals from DC cases within their circuit (11 circuits + DC circuit & Federal Circuit)

Special Courts

Congress establishes # of courts to address specific areas of laws/case types

• bankruptcy, federal claims, international trade, military courts

SCOTUS (what do they review and what is the structure)

• there is a chief justice and 8 associate justices

• Almost all cases reach SCOTUS through a discretionary writ of certiorari

• Courts will hear a case if 4+ justices votes to hear the case

  • MUST involve a federal question of substantial importance/conflict in case law between US Circuit Courts

• Merit docket: list of cases being reviewed by SCOTUS

  • Amicus briefs: people interested in the party

• Emergency/shadow docket

  • applications seeking immediate decisions/relief from the court

  • currently the SCOTUS is hearing more cases on the emergency docket

Merits docket

list of cases being reviewed by SCOTUS

Amicus briefs

people interested in the party

Emergency/shadow docket

applicants seek immediate decisions/relief from the court

• NOTE: SCOTUS HAS BEEN HEARING MORE CASES ON THE EMERGENCY DOCKET

Jurisdiction

power of court to hear and decide a controversy of a particular kind involving specific parties

Subject matter jurisdiction: authority to hear the subject matter of the case

Personal jurisdiction: refers to the power that a court has to make a decision regarding the party being sued in a case.

Civil matters

1. Exclusive federal issues

2. Concurrent federal questions (statutory or federal constitutional)

3. Concurrent diversity cases (civil state law disputes over $75k)

State Court powers

broad and exclusive jurisdiction for certain matters

• cases involving diversity of citizenship in which amount in controversy is $75k or less 

• cases which federal power does not reach including property, contracts, commercial transactions and most crimes

Concurrent federal questions and diversity jurisdiction

if plaintiff elects to file in state court and the threshold is met, the state court can have concurrent cases.

• state courts will then apply federal law and precedent on substantive law

• personal jurisdiction requirements must be met

substantive vs procedural law

Substantive law defines the rights and duties of individuals and organizations, while procedural law outlines the legal rules for enforcing those rights and duties.

Tort Laws

• Intentional Tort (battery): crime

• Negligence: civil

• Strict liability: civil

Tort Definition, Mechanism, and Remedy

Definition: An act (or omission) that gives rise to an injury or harm

Mechanism: civil lawsuits. Class actions are often a party of this

Remedy: almost always financial. Damage to property, limitation on earning potential, etc

What is the benefit of tort law

Tort law

• incentivizes private citizens for good conduct and disincentivises bad conduct

• links deterrence and compensation policies to fairness by requiring compensation

• facilitate the development of prospective rules that prevent harm in a myriad of circumstances

Critiques of Tort Law

• “Tort tax” due to ever present threat of liability that raises the price of goods/services and removes others from the market

• Expansion of tort liability undermines personal responsibility

• Courts have gone overboard in serving compensation goals and have lost sight of fairness and real-world consequences

Negligence

A personal is liable if they fail to exercise reasonable care, under the circumstances, for the safety of another person or their property, and where that failure is the proximate cause of injury

1. Defendant owes a duty of care to the plaintiff

2. Defendant breaches that duty of care

3. Defendant caused a harm to the plaintiff

4. Plaintiff suffers a harm that is protected against negligent conduct

Elements of Negligence

1. Defendant owes a duty of care to the plaintiff

2. Defendant breaches that duty of care

3. Defendant caused a harm to the plaintiff

4. Plaintiff suffers a harm that is protected against negligent conduct

Duty of Care

• A person owes another person a duty of care based on a relationship

• No general duty to assist others - one isn’t required to be a Good Samaritan

• Duty of care is the degree of carefulness that a reasonable person would exercise in a given situation

Reasonable person is an objective and external standard and is the fictitious person who is always careful and prudent and never negligent

What is a reasonable person define as for duty of care

Reasonable person is an objective and external standard and is the fictitious person who is always careful and prudent and never negligent

are you negligent if you insert yourself in a situation you were OG uninvolved with, but then remove yourself from it

yes, you become negligent

The Reasonable Person Standard based on

• Children

• Physical Disability

• Mental Disability

• Superior skills on a trade

• Emergencies

Children: below the age of majority, reasonable for a person of the same age, intelligence and experience

Physical Disability: Reasonably careful person with same disability

Mental or Emotional Disability: Not considered unless person is a child

Superior skill or knowledge: Same skill and care as members of profession or trade

Emergencies: Sudden or unexpected event that calls for immediate action and permits no time for deliberation

• If defendant’s negligence caused an emergency then liable even if he/she acted reasonable during the emergency

Although there is a general duty to exercise reasonable care for the safety of other persons and property, there is no duty to act as a Good Samaritan (Baby carriage headed towards cliff’s edge)

Reasonable Person Standard and Negligence Per Se

Negligence per se is (breaching duty of care) a doctrine where a violation of a statute automatically proves negligence, as the statute sets a specific standard of care that is often more specific than the reasonable person standard

• Majority of courts hold that an unexcused violation constitutes negligence per se (breaching duty of care)

• Compliance w/ regulation doesn’t prevent a negligence finding IF a reasonable person would have undertaken additional precautions (Driving the speed limit on a snowy day)

• Negligence per se establishes breach of duty of care but plaintiff must prove other elements of tort claims (causation and harm)

Causations for Negligence

But for rule: but for the defendant's action/lack of, would the plaintiff's injury have occurred?"

Substantial factor test: Was the defendant's conduct a "substantial factor" in causing the harm? Used to supplement when the but for rule is too weak.

Forseeability: Liability can be found if a reasonable person could have foreseen the general type of harm that occurred, even if the specific details of how it happened were not predictable. 

Superseding cause: an unforeseeable, independent event that occurs after the initial negligence and breaks the chain of causation, relieving the original negligent party of liability for subsequent harm.

Satisfying the “Defendant caused a harm to the plaintiff” Element

Plaintiff must prove the defendant’s negligent conduct caused harm to a protected interest

• Has evolved to further involve emotional distress

• Can be void of physical harm if the conduct would have put the subject in the position of bodily harm

• Witnessing serious bodily injury of a close family member that results in a serious emotional disturbance to other family member

Defenses to negligence

Contributory Negligence:

• The plaintiff also acted negligently, even in a small manner. May prevent them from recovering damages.

Comparative negligence:

• Damages divided proportionally, based on relative negligence of the plaintiff and defendant

• Pure Comparative: Divide negligence proportionally (minority view)

• Modified Comparative: If a member shared >50% of the damage, they cannot get recover their damages (majority view)

Assumption of Risk:

• No damages recovered if plaintiff voluntarily/knowingly assumed the risk

  • implied assumption of risk: a person voluntarily encounters a known danger without an explicit agreement—their conduct implies they accepted the risk

• Courts disfavor using implied assumption as ones only liability defense argument, but it can be factored into comparative negligence distribution.

What is the 3rd level of liability for torts (apart from intentional and negligence)

Strict liability: holds a defendant liable for harm regardless of their intent or negligence, often in cases involving dangerous activities or defective products

What are some of the dangerous activities that Strict Liability is applied to

1. Abnormally dangerous activities

2. injuries from some animals

3. Manufacturers and merchants (distributors/retainers) who sell defective, unreasonable dangerous goods

4. Workers’ compensation statutes (ie by statute)

Can strict scrutiny apply comparative or contributory negligence?

States sometimes apply comparative negligence. Plaintiff failure to take reasonable cautions will limit their recovery

Can strict scrutiny view implied assumption of risk?

No, only expressly stated assumptions of risk, such as contracts, are deemed valid

US Constitutional Amendments

Articles 1-3: establishes legislative, executive, and judicial branches of government (in that order)

Article 4: defines relationship between federal and state government and power

Article 5: amendment process

Article 6: supremacy clause

Article 7: ratification process

Bill of Rights (1791)

10 Amendments passed to limit federal powers and clearly establish individual rights

Provide info about the other amendments

15th-17th Amendment: reconstruction era

14th Amendment: applies principle guarantees of Bill of Rights to the states

• due process clause: the government could deprive a person of rights only according to law applied by a court

18th Amendment: repealed (prohibition)

Federalism

• Legislation enacted by Congress must based on a specific power granted to the federal government

• Congress has power to “make all Laws necessary and proper” to carry out the federal government’s enumerated powers

• Supreme Court has interpreted “Necessary and Proper Clause” to enable Congress to legislate in area not in the list of enumerated powers

• Supremacy clause allows federal laws and decisions to supercede state ones

Rules for State-law preemptions

1. If there is a federal law is discussing the same things as state, the federal law takes precedence

2. If the state law inhibits the ability to achieve the federal law, the state law is preempted

3. If congress doesn’t act (despite it’s authority to preempt) state regulation is valid

Judicial Review

established in Marbury v Madison: examination of governmental actions to determine whether they conform to the U.S. Constitution

Levels of Judicial Review

1. Rational Relationship Test: must have legitimate government objective and rationally related to achieving objective

2. Intermediate Scrutiny Test: Regulation must have a substantial relationship to an important government objective

3. Strict Scrutiny Test: Regulation necessary to a compelling government interest and court is making an independent determination (non-differential to legislatures)

The Rational Relationship Test

Very deferential/most lenient test that doesn’t deal with fundamental liberties or suspect/subject classification (race/origin) Most typically used for legislation involving economic regulation.

1. Potential differential treatment based on non-suspect classifications (things not involving race, religion, national origin, and alienage)

2. Non-protected speech

3. No impact of fundamental rights

Intermediate Scrutiny Test

Often for quasi-suspect classification.

1. Regulation must have a substantial relationship to an important government objective

   1. Potential differential treatment based on gender, legitimacy, and certain classifications 

   2. Regulates Commercial speech

The government must show that the law is not overly broad

Strict Scrutiny test

Absolutely not differential. Used for laws involving suspect classification and fundamental rights.

1. Regulation necessary to a compelling government interest and the law achieves their interest in the most restrictive/narrowly tailored way possible

2. Is attacking or dealing with:

   1. Protected Non-commercial speech

   2. Suspect classifications

   3. Fundamental rights

The law is presumed unconstitutional unless the government can convincingly justify it.

Who is the subject that the constitution (sans the 13th) address

Constitution protections only apply to government action (state or federal)

1. 13th Amendment applies to private individuals and statutes may extend protections to private activity

2. Private conduct may be viewed as state action subject to Constitutional protection

   1. State exercises coercive power over private conduct

   2. State significantly encourages private action

   3. State is substantially involved with private action

   4. Private entities engage in public functions

Authority as dictated by the Commerce Clause

• Protect the channels of interstate commerce

  • Congress can prevent interstate highways, air routes, etc from being misused

    1. I.e. federal law prohibits kidnapping across state lines

• Protect instrumentalities of interstate commerce

  • Instrumentalities: things that are legitimately shipped across state lines or used to do the shipping

    1. Federal law prohibits theft from interstate shipments or hijacking an airplane

• Regulate activities substantially affecting interstate commerce

  • Local activities that impact interstate commerce

Impact of Commerce Clause

• Broad source of federal authority to regulate the economy and associated local activities

• Restricts state regulation that obstructs or unduly burdens interstate commerce (dormant commerce clause)

New vs Old Federalism

Old: Federal power expanded significantly, allowing Congress to regulate wide areas of economic and social life.

New: The Court reasserted that not all local or non-economic activities can be federally regulated, marking a return to clearer boundaries between state and federal power. (i.e gun laws in US v Lopez)

Article 2 of the Constitution

1. The president is the Commander in Chief of the Army and Navy

2. Congress is the only branch that has the power to declare war

1. Command the military (Commander in Chief Clause)

2. Require principal officers to submit opinions

3. Make treaties (with advice and consent of the Senate)

4. Nominate ambassadors, Supreme Court justices, public ministers and "all officers" of the U.S. (with advice and consent of the Senate) and receive Ambassadors

5. Fill vacancies when Congress is in recess, convene Congress and adjourn Congress

6. Faithfully execute the law (Take Care Clause)

What is the contradiction in how the government wants to rule

Framers viewed a single and energetic executive as important to government but also had a bias against overly strong executive

How is the government checks and balances

1. Presidential treated and executive appointments subject to advise and consent of Senate

2. President may conduct foreign policy and commit troops while Congress alone has power to declare war

3. Congressional legislation may be vetoed by the President but can be over-rules by a supermajority

Textualism-based Formalism vs Purpose-based Functionalism

Textualism-based Formalism:

• Effort to use textualism as a bright line test to identify actions by one branch encroaching on other branches’ power and tendency to view power as “exclusive”

Purpose-based Functionalism:

• Allows for flexibility and balancing - spectrum of executive power based on stance taken by Congress

Narrow vs Expansive view of Executive Power

Narrow: Vesting Clause and Take Care Clause apply to powers constitutionally enumerated or statutorily provided by Congress

Expansive View of Executive Power

• Vesting Clause: confers all executive power solely in the President (singular executive) which allows removal of all executive officers (unitary executive theory)

• Executive power also include unenumerated powers (“implied” or “inherant”) and executive power often viewed as “exclusive” (not subject to limitations by Congress)

• Take Care Clause interpreted to allow the exec to only enforce laws they deem constitutional and protective of the government, constitution, and the US

Types of Speech and their levels of protection

Strict Scrutiny Standard!! Protected Speech

1. Political speech is at the core of the 1st amendment and extends to non-verbal expression and hate speech

2. Supreme Court also held that corporations are entitled to 1st Amendment protection (Citizens United)

Speech Subject to Lesser 1st Amendment Protection

1. Commercial Speech: expression related to economic interests of the speaker

2. Defamation: civil wrong or tort resulting from damage to a person’s reputation through communication of a false statement

Non-protected speech

1. Obscenity, criminal speech, false and deceptive advertising, fighting words, incitement (imminently threatened unlawfulness that is likely to occur)

Constitutional Theories

1. Originalism

   1. Constitutional amendment and political processes can address change, not judicial activism. Read the constitution as it is.

2. Living Constitution

   1. The Constitution is a living document that includes open-ended clauses and reflects fundamental principles and values. Society changes and inferring historical intent isn’t simple

   2. Supreme Court should address “constitutional moments” to support fundamental values when political process cannot function to address

3. Representation Reinforcement

   1. Constitutional theory should focus on maintaining a well-functioning democratic process and guarding against systematic biases in political processes

   2. Ensure participating in decision-making by minorities whose interests defer from majorities