Adversarial Legalism Test 1

Legal uncertainty

When potent adversarial advocacy is combined with fragmented, relatively non-hierarchical decision making authority, legal norms are particularly malleable and complex, and legal decisions are particularly variable and unpredictable.

Legalistic

Sense of being controlled by formal legal rules and procedures rather than by discretionary judgement, bargaining, and informal processes.

Bureaucratic Lagalism

A policy implementing or decision making process characterized by a high degree or hierarchical authority and legal formality.

Adversarial Legalism is a product of

American legal culture

Political Culture

Set of popular political attitudes that expects and demands comprehensive governmental protections from serious harm, injustice, and environmental dangers.

Governmental Structures

Reflect mistrust of concentrated power and hence that limit and fragment political and governmental authority.

Adversarial legalism

helps resolve tension

Adversarial legalism gives the United States

The most politically and socially responsive court system in the world.

Adversarial Legalism makes the

Judiciary and lawyers more fully part of the governing process and more fully democratic in character.

Adversarial Legalism

policy making, policy implementation, and dispute resolution by means of lawyer dominated litigation.

American lawyers,litigation, and courts

serve as powerful checks against official corruption and arbitrariness, as protectors of essential individual rights, and as deterrents to corporate heedlessness.

Adversarial legalism is a

markedly inefficient, complex, costly, punitive, and unpredictable method of governance and dispute resolution.

American Adversarial Legalism suggests

It is best viewed not merely as a method of solving legal disputes but as a mode of governance, embedded in the political culture and political structure of the United States.

Formal legal contestation

Competing interests and disputants readily invoke legal rights, duties, and procedural requirements, backed by recourse to formal law enforcement, strong legal penalties, litigation, and judicial review.

Litigant Activism

A style of legal contestation in which the assertion of claims, the search for controlling legal arguments, and the gathering and submission of evidence are dominated not by judges or government officials but by disputing parties or interests, acting primarily through lawyers.

Adversarial system

characterized by an impartial
decision maker who evaluates contrasting presentations by adversaries to a dispute, evaluates the merits of those presentations, and renders a decision that distributes a positive outcome to one party
and a corresponding negative outcome to the other

2 different types of justice

1. Procedural justice
2. Substantive justice

Procedural justice

fair outcome if rules are followed during the process

Substantive justice

concerned about the outcome

In an adversarial legal system policy making takes place in

the judicial (through lawsuits and litigation) and legislative branch

attorney general

are principle legal officers who represent a country or state in legal proceedings; the chief law enforcement officer of the united states or state governments; hold laws accountable to all people;

private attorney generals

people who bring lawsuits and hold laws enforceable to all people in the process just like attorney generals do; representing themselves or groups of people like themselves

Judicialization of politics

people take their problems to the judicial branch instead of legislative which promotes a judicial approach to politics

Problems with the judicialization of politics

leads to an ability to cause politics to lose its democraticness

Four types of policy making and dispute resolutoin

1. Adversarial Legalism
2. Negotiation/Mediation
3. Bureaucratic Legalism
4. Expert/Political Judgement

Adversarial legalism is the most ________________ and ______________ of all the policy making methods

formal and participatory

Adversarial legalism is a system with a sense of formality where

contending parties and government officials insist on written legal procedures and preexisting legal rights and claims

Mediation/Negotiation

no authoritative decision maker; process dominated by contending parties; informal process; depends on the resources that each party to as to what justice they get. money, negotiation skills, etc matter

Bureaucratic legalism

decision making process characterized by a high degree of hierarchical authority and legal formality; bureaucracies keep a strict set of rules on how to deal with each situation

Expert/Political

process characterized by high degree of hierarchical authority under a relatively informal decision making style

Entrepreneurial lawyers

lawyers acting as entrepreneurs and organizing/operating businesses, advertising for that business, differentiating themselves from other lawyers and firms

Advantages of adversarial legalism

Advantages of Adversarial legalism include the fact that it has the potential to create an extremely politically and socially responsive court system. It also forces the judiciary and lawyers to play a huge role in the governing process, which is sort of democratic in character.

Disadvantages of Adversarial legalism

There are also high risks associated with this type of legal system. It has high costs and penalties. Adversarial legalism also enables ideologues and opportunists to use the law as a tool for extortion. In addition, there is also a high level of unpredicatability. Adversarial legalism can be inefficient and unfair of meeting the public demand for justice and protection

Adversarial legalism rooted in

political and legal culture

Politically constructed aspect of adversarial legalism

politically constructed in the sense that it is shaped by political ideas rooted in citizen's distrust of their own government. This distrust leads to the legal culture of adversarial legalism which is manifested through the lawyers, judges, and juries that make up the system.

Juries follow adversarial legalism because they are

nonexpert views, not authority figures

4 categories of Law

1. Civil Law
2. Common Law
3.Religious Law
4. Mixed/Customary Law

Civil Law

refers to legal systems based on a code; an effort to codify all the rules and have them written on one list; codes are typically decided by political system in place. Ex: France, Germany

Common Law

Judge made law; judge articulates the principle that led them to their decision and other judges follow precedent; stare decisis- verticle and horrizontal

precedent

body of laws created through judge's opinions

Religious Law

includes Muslim countries; law decided by priests, mosks, religious figures Ex; the Pope

Customary Law

tribal system with chief customs are socially enforced but not written down

Public v Private Law

Public involves the government whereas private is among individuals and or corporations

Tort Law

personal injury law; all about compensation

Different Types of Private Law

1. Tort Law
2. Family Law
3. Probate Law
4. Property Law
5. Contract agreements

Types of Public Law

1. Criminal Law
2. International Law
3. Bankruptcy Law
4. Antitrust Law
5. Statutes
6. anything involving the constitution, only applies to government

Inquisitorial litigation

1. Judges drive lawsuits/trial
2. Judges decide the questions and who to ask them
3. Lawyers serve the judge and act as officers of the cour

Adversarial Legal system

1.Lawyers decide testimony, strategy
2. Trials/lawsuits are lawyer driven, they act as advocates for their client
3. contest between lawyers
4. Judge is the umpire
5. There is a jury often times

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