Week 13 - The Courts.    "...and justice for all…"?

Here are some words from your text for this chapter:  

Common law  

Criminal law  

Civil law  

Original jurisdiction  

Appellate jurisdiction  

Judicial review  

Judicial self-restraint  

Judicial activism  
 

English Law.  

Most of the rest of the world doesn't have the same legal system that we have. Most of the rest of the world practices " Roman Law ," or sometimes called " French Law " or " Codified Law ."  It's law written down and enforced by judges.  

We, and the rest of the world colonized by England, practice " common law " or "judge made law."  It's based on what previous judges have done in similar cases.  

Guilt (or non-guilt) is determined by the jury, not the judge. 

But the judge controls what the jury sees. It's a purposefully artificial reality inside the courtroom. Reality doesn't matter. What matters is legal reality .  Reality which can be proved to a jury " beyond a reasonable doubt ."    

TV and Movies ain't real.  

TV and films have distorted most people's view of courts and court procedures. Reality is far less dramatic than TV or films. Judges don't allow yelling, pointing or crying. Most of the drama is internal.
 

Spirit of the Law v. the Letter of the Law

Law Scholars talk about “ the Spirit of the Law v. the Letter of the Law. ” Or, “Law as a search for justice…”

But in this reality, on this planet, with my species – we can't achieve justice. We can't even agree on what justice really means.

Justice? System.

We can't really get justice from our Justice System , not justice of outcome, nor justice in fact.

Justice in fact is impossible for humans to agree upon , let alone to have on our planet. 

What really is justice if it's your child killed who is victimized, or your spouse attacked, your parent?, or you ? 

Justice in fact is impossible, so justice of procedure is all we can hope to get.

That's not justice!  

Of course all justice systems at all levels of government fail at least some times. They are all run by humans, with human problems and prejudices.  

Is the justice system any more racist than the rest of society? In LA county , 100% of the people arrested, convicted and doing time for a certain crime are of one ethnic group and gender. Is that proof of racism? The crime is child pornography and the group is white males. (LA TIMES)  

Remember the levels of courts.

The first court to hear a case has original jurisdiction . That means this court hears and decides the case. It's decision on guilt, liability or whatever is the only time the facts of the case get heard and the only time a decision on those facts is made.

The appellate court does not re-try the case. The only issues the court of appeals looks at are issues of whether the original court followed all the procedures we have come to call “due process.”

“due process”

Essentially, the appellate court looks at are whether the process was fair not weather the outcome was just.

And the Supreme Court (of the U.S. or the states – they all have their own) is the final arbiter of the procedural justice questions about the case. But the Supreme court does not re-try the case, nor does it listen to anybody accept the lawyers from both sides. Usually they get an hour (or less) each to make the merits of their position. 

But many interest groups (and even the state or federal government) can file a “ Friend of the Court ” brief and "weigh in" on whatever central issue the court is reviewing.

Briefs

Most of the Supreme Court's work is done reading and writing briefs. The minority decisions are often important in future cases – even though being on “the minority” means that side has lost the vote on the case.  

Of course, the Supreme Court is a political body . All Supreme Court justices in our history have worked for politicians on campaigns or in their administrations, (except one justice, who was dean of a law school).

Judicial Restraint v Activism

The right wing of our political spectrum likes to say that activist judges want to legislate from the bench. These same folks argue that judges should show restraint in interpreting the constitution. In many ways this is a bogus debate . The question is NOT really between activist judges (who what to change things) and “ original intent judges” (who see no need for change). The point of contention is the RATE of change, not the fact of change.

Birth control is a wonderful example. Before Griswold v Conn. (a landmark Supreme Court case) many states simply outlawed birth control. The court held that although the word privacy is not in the constitution, there was obviously a concern to limit the government's ability to invade our privacy (no troops in homes, freedom of speech, etc). This concern covers a woman and her re-productive rights (i.e. – the right to control whether she re-produces).

Later, Roe v Wade did not really expand rights as much as it recognized change. What is the federal government's position on abortion? They really don't have one. The President and the Congress can never seen to agree, so the Supreme Court has ruled only that STATES cannot outlaw abortion. The question is left open as to whether the federal government could. The Supreme Court doesn't deal in hypotheticals.

Right to Privacy?

Speaking of hypothetical – Do you have a right to privacy?  

Really?  

Where?

On the Job?  

On the phone?

In your car?

In the Mall?

Maybe the only place where you have a reasonable expectation of privacy is in your home, with the curtains drawn and no illegal activity occurring.   The only exceptions are your lawyer and your priest .

But we will talk about that later.

 

 

 

Bureaucratic Theory -

Or why No One runs the government.
   Here's some terms from your text:  

Bureaucracy

Civil service

Spoils system

Merit system

Oversight

Whistle-blower

Deregulation

 

We are all bureaucrats.

Who works in a bureaucracy?  Over 25% of us who have jobs, work for some level of government: county, state, city, etc.  But most people who have jobs work in a bureaucracy.

Any job that has procedures and rules is a bureaucratic job.  Bureaucracy is part of our culture.  If you have a job - you have often heard people at your job say: “it's not my job.”  They are saying they understand the concept of bureaucracy even if they never heard the word.

BUREAUCRACY IS EVERYWHERE.

Most people think bureaucratic studies is boring and dull because bureaucracies are boring and dull, but I think it has the most to teach us about ourselves compared to any other aspect of social science.

S.O.P.

Anyone who has a job has an S.O.P. on that job.  "Standard Operating Procedures" are the rules under which we do our jobs.

Tsar Nicholas of Russia said:  "I do not rule Russia, ten thousand clerks do."  And except for the country and the numbers, the same can be said about the U.S. and the President.

The Bureaucratic Theory.

So your book and most political scientists have argued about the pluralist vs. the elitist theories of government.  Well the bureaucratic theory offers a slightly different look at the function reality of all institutions (government, business, schools etc).

The bureaucratic theory holds that no one runs the government and that the best kind of government. 

 

You want limited government?  Bureaucracies are the answer.  You want democracy?  You can have it and the stability bureaucracies provide.

 

We are all bureaucrats.

A bureaucrat is technically any one who works for any level of government. I'm a bureaucrat, your local cop, postal carrier and garbage collector - we're all bureaucrats. About 25% of us who have jobs, work for government - (the largest percentage of people who have jobs work for corporations). But if we expand the definition of bureaucrat to include any one who has a job that is defined by rules, procedures and standards we are really all bureaucrats. Even if you work for yourself, you develop rules and procedures and the lessons to be learned from the bureaucratic theory apply.

We have a Bureaucratic Culture.

We have a bureaucratic culture in that we all share much of the mental vocabulary of bureaucracy. It's a big part of "modern America." If you have a job, I'm sure you know the most heard expression at any job is:" that's not my job." We all understand organization, chain of command, and the other basic concepts of bureaucracy

"Incrementalism. "

The fundamental concept of the bureaucratic theory - it's core belief if you will is " Incrementalism. "

t's the understanding that things change, not very fast, sometimes very slowly, but change does occur in small little increments. Little changes over time bring real change, but nothing really happens "overnight." (Only in the movies.)  

Hugh Heclo , in his classic book: A Government of Strangers , sets fourth six reasons for incrementalism in government and other intstitutions.

But before we bash government for only changing slowly ask yourself, is incrementalism part of your life? Yes, my friends, the same six reasons governments (really all institutions) can only change incrementally are the same six reasons most humans only change incrementally.

Incrementalism is a big part of who we are.

The first reason for incrementalism:

No one can take "time off" to really stop and evaluate what they are doing. Life goes and rents due and your job and kids and yada yada. Who can really STOP and evaluate their life (Let alone their business, government, etc.   The LAPD may have corruption problems but can they stop one week just to change everything?

The second reason all our institutions (and us) can only change incrementally is the fairly accepted notion that "it's safer to stick with what works, even if it only sort of works." Or "Better to walk down a path you know will continue…" Or "Better the devil you know than the devil you don't know." Real change is scary and risky and 80% effective might be good enough so why change…?

The third reason is " Sunk Costs ." Those are all the time, effort, money, brain power and all the other resources (human and other) that went into whatever is the policy now. If you change it, all those costs are lost.  

And the fourth reason - Not only are your costs sunk, but if you want real change, you have to admit what you were doing was wrong. This is far easier for an addict to do than for a government (or corporate) department where hundreds of people have been working on the premise that what they were doing was right. It's easier to change in small steps there's less resistance. The human denial mechanism is quite strong. Don't bad mouth denial, it's a survival mechanism deep in the human genetic structure. It allowed our ancient ancestors to sleep at night "No, the bear won't eat me." Politicians call this "political expediency," It means "good enough for now."

The fifth reason for incrementalism is a common problem in all groups of humans: we can't agree on long term goals. No short term, nor mid-term. Even if we agree, so what? Goals may help you or me do this or that but do group goals cause a group to act this way or that? You may have a job where you've been asked to "write a job description." Don't write anything you don't want to be assigned. Or maybe your boss writes the job description so full of things you'll never get them all done so you can stay right there at that level of pay in that job. If we were to write goals as a group, hopefully we would be wise enough to only put down attainable goals, because at the end of the year (or month or whatever) and we see if we met those goals and we did not, we are losers. If we right goal we can attain we are winners. Goals sound good, but they really don't cause action. And remember, political science studies actions, things that can be measured.

The sixth reason has to do with risk.  We all act like we are maximizing our potential outcomes (taking risks), but in fact we first seek to minimize our potential negative outcomes.  People talk as if they "live on the edge" but really they only live near it.  If parachutists really wanted to live on the edge, they wouldn't take a parachute.  Most parachutes open, so it's not really that risky.  Risk sounds great in theory, but in reality do we want our governments risking or ensuring?  

I believe that incrementalism is at the heart of the human experience, especially in modern times. But not everybody agrees.

Presidential Appointees

Remember the 10,000 Presidential staffers? About 4000 of them don't work in the white house (nor the executive office building next door to the white house.) These men and women are appointed by the President to "run" the various bureaus and departments of the federal government. They serve at the discretion of the President. Most don't last four years on the job. Their job is to "direct" their department to do what the President wants done. Of course, they are not protected civil servants, but the permanent bureaucrats under them are.

So I'm the new political appointee- YOU (the class) are workers at the Bureau of Indian Affairs ( BIA ) (one of hundreds of departments and bureaus. You all may speak native languages and have worked on reservations or whatever. I have an MBA from Harvard and my job is to "fix" BIA.I don't know anything about Indians.

If I say I'm here to "clean up" BIA, most of you will be offended and not work with me. After all, you are protected civil servants whom I can't really fire. You all will have your jobs longer than I have mine. Instead, all I can do is make incremental change, no matter what I or the President wants.

Every department has a culture .

It's a way of doing business- that temporary "leaders" find very difficult to change. Look at LAUSD for example. How can change take place in an institution that large, except by incrementalism?

Bureaucracies often act like interest groups.

For all departments of bureaus, success is continued work and getting the same chunk of budget as before. Bureaus seek continued work. Look at NASA . Before we got to the moon, NASA had one job, to get to the moon. Because of the science? Because of the adventure? No, because we had to beat the evil Soviets to the moon.

Once we got there, did NASA stop? No, they sought continued work. The space shuttle is a great example. By the time the challenger blew up (only the 87 th personed launch in US history - we have since had more shuttle launches than that) every satellite launched from the US had to be launched from the shuttle. Even though this was more expensive than disposable rockets, the federal government wanted the shuttle to be competitive, so it simply mandated that all satellites had to be launched from the shuttle. When the challenger blew up , we lost our ability to launch satellites for more than a year. Now the U.S. launches satellites with the shuttle and with disposable rockets.

The four rules that explain human institutions.

Heclo, in A Government of Strangers , developed what he called the four rules of all institutions. I prefer to think of them as the four things that explain how most things work.

1. The higher you are the more vulnerable you are.

This means that those who actually have power to make decisions that effect people's lives often also run the risk of making mistakes and being held accountable for those mistakes. Have you ever had a job where your boss was threaten by you? This rules explains why.

2. There is no reason for uppers to help lowers .

This means that although many jobs train their workers, no job trains underlings to displace management.  (See rule number #1)

            3. There is rarely long term direction from top.

Even is there is, do all people in the institution share that long term direction? Even if they do, what good are plans when the immediate is so full of problems?

And probably the saddest truth of human existence:

4.Creative intelligent hardworking individuals are sometimes rewarded, BUT...

...Team plays are ALWAYS rewarded.

Individuals often upset the group by out performing it. If you have a job, you have already learned this lesson.

If you have a job, chances are you have first hand experience of these four rules and of incrementalism because we live in a bureaucratic culture .