Law, Policymaking, and the Policy Process: Closing the Gaps

Public policy scholars and public Law scholars often study the same substantive issues and have similar theoretical interests Yet students of the public policy process rarely consider the courts as policymakers in the same manner as do their public law counterpart We seek to explain this difference in approaches between the two Subfield on the question of the courts as policymakers, and we ask. how models of the public policy process should incorporate the judiciary.     

Law and Famine: Learning from the Hunger Courts in South Sudan

Activists and scholars are seeking to end famine by promoting international legal accountability for starvation. This article deepens our understanding of the relationship between the politics of famine and law by observing the ongoing prevalence and power of legal norms and institutions during times of famine. It reveals the widespread use of hunger courts in famine-prone South Sudan and their role in legally enforcing social networks that provide for the most vulnerable. Based on analysis of country-wide survey data from 2018 and 2019, qualitative interviews from 2019‒22 and in-depth ethnographic observations of hunger courts in one chiefdom in South Sudan during a period of famine-level hunger in 2018 and 2019, the article argues that hunger courts have played a key role in enforcing social networks. These courts have also supported continuity of chiefs’ authority despite crisis. The article concludes by addressing two issues: whether law is necessarily emancipatory in times of famine, and whether legal norms have shifted responsibility for hunger away from the political economies and conflicts that cause famine, instead placing blame and shame on the families of the most vulnerable.     

Property and morality: women in the communal courts of late Ottoman Greece

Abstract

Women in Ottoman Greece were present in a number of different courts of law, one being the so-called communal courts. These courts became increasingly important towards the end of the Ottoman period, especially in areas where there was little if any Muslim population, and they dealt with a great variety of cases ranging from property disputes to rape and crimes of morality. Women were very active in such courts, both as accusers and as accused, showing remarkable knowledge of the manner in which such courts functioned. They frequently chose to pursue cases in them, in part because communal courts were supportive of individuals in difficult circumstances such as widows, who form the bulk of the female petitioners. This was an outcome of the nature of these courts which were composed of the same individuals who exercised executive powers over their communities and who thus wanted to ensure tranquillity and the prosperity of their people. For that reason notables appear almost unconcerned with the stipulations of customary law in several of their judgments, seeking instead to achieve compromises, or what we could term the greater social good. Being local, easily accessible, and familiar to the members of each community, communal courts were attractive to women and men in the years leading to the emergence of the modern Greek state, forming one tier of the complex Ottoman 'system' of conflict resolution.     

Beyond “unwinding”: Constitutional review strategies in consociations

This article contributes to the emerging literature on the role of constitutional courts in consociational democracies. While most works have approached the topic from the perspective of regime dynamics, this analysis focuses on how courts relate to the constitutions they are mandated to enforce. Beyond addressing the empirical question of what choices courts make in their balancing between universal values and stability, this article also investigates how courts do this balancing. Through the analysis of seven cases from two consociations, Bosnia and Herzegovina and Northern Ireland, I argue that courts embrace specific interpretive approaches (proportionality analysis, purposive interpretation, and the political question doctrine) to reconcile the ideas of constitutional supremacy and respect for political agreements. The analysis also demonstrates how—by their nature political—framework agreements establishing consociational settlements become primary reference points for interpreting constitutional documents.     

FROM OLD BILLS TO SICK PIGS: OUR WAYSTO CAPTURE COMMUNITY

Abstract

Using the records of the Guildhall and Mansion House justice rooms, this article explores the summary justice process in the City of London in the second half of the eighteenth century. It suggests that there is much to learn about the way most Londoners experienced and used the law in this period. These courts were arguably more accessible to more people than the jury courts of Assize and Quarter Sessions that have remained the focus for most studies of the history of crime and criminality. This article will provide an introduction to the nature of these courts and to the sorts of offences and offenders that were brought to them.     

Carl J. Friedrich's Legacy: Understanding Constitutionalism as a Political System

Carl J. Friedrich (1901–1984) defined constitutionalism as something more than can be expressed by the dominant behavioralist paradigm of modern political science and the typical academic focus on law and courts. A leading but now neglected post-WWII authority on constitutionalism, Friedrich argued that it should be understood as an institutionally-based, interactive system for deliberating the meaning and legal application of the norms of a political community. His approach shares much with the contemporary “historical institutionalist” call to situate law and courts within a broader, more normative, and more interactive conception of constitutionalism. Accordingly, a reconsideration of Friedrich's work may help current efforts to better articulate the full richness and complexity of constitutionalism as a distinctive way of ordering political life.     

The Prestige of Australian State Supreme Courts Over the 20th Century

This article measures the prestige of the Australian State supreme courts and examines competing explanations for differentials in their prestige over the course of the 20th century. The study finds that the prestige of the State supreme courts are positively correlated with the reputation of their Bench, proxied by the number of High Court judges from that State; socioeconomic diversity in that State, proxied by the State's population; and legal capital, proxied by the number of pages of the official law reports of the State supreme court.     

Review of Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie , the Judicial Power, and the Politics of Federal Courts in Twentieth-Century America

One of my strongest memories of law school remains the first class in “Federal Courts.” The teacher began by asking if anyone could explain the holding in Erie Railroad Co. v. Tompkins (1938).2 Several students raised their hands, and the answer was soon forthcoming. Federal courts were bound by the decisional rules of the state courts in the states in which theywere located; there is no federal common law. “Very good,” the teacher said. “If you know that, why are you taking this course?”     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective

Examined in this article are the deference doctrines developed by courts in the United States, Canada, Britain, Australia and South Africa. Deference doctrines determine when and if courts are to defer to an agency's reasonable interpretation of the ambiguous terms of the statute that the agency administers. The study of deference doctrines in comparative perspective reveals much about the need for agency autonomy in the modern administrative state and the capacity of courts to maintain the delicate balance and remedy abuses of discretion. It also provides an opportunity to determine how well the leading theories of judicial decision making explain the variety of judicial responses to the common problem of deference to agency interpretation of statues.     

The Problems with Patents: A Less than Optimistic Reading of the Future

This article examines a number of problems associated with patents. These are aspects of patents (and patent law) that are masked by conventional discourse that frequently equates strong patent protections with innovation and, ultimately, economic growth. This article will discuss: patents' links with knowledge and expertise; infrastructural requirements; innovation incentive structures; coercive tendencies (via high litigation and transactions costs); and global ‘harmonization' agreements (specifically TRIPs). In sum, it provides a glimpse of why patent law matters for understanding today's political economy and why global inequalities will continue to grow unless the international socio‐legal landscape changes substantially.     

Clan Claims: Land,Law and Violence in the Papua New Guinea Eastern Highlands1

Land has become the source of new end more complex disputes in Papua New Guinea in recent years. Economic opportunities associated with government programs and multinational corporations have altered land values in rural districts. This paper examines how in the context of such shifting attitudes toward land, competing groups in an Eastern Highlands district use both law and violence in their confrontations. One component of the legal strategies pursued includes the elaboration of clan stories to legitimize claims before the courts. Yet, while rural elites and their families may desire the support of the law in their economic pursuits, the realities of intergroup violence set limits on the likely success of this approach.     

The politics of the Shanghai courts: the state,local elites,and social networks in Nationalist China, 1927–1937

This article explores the ways in which the Nationalist Party established dominance over the Shanghai courts in the foreign concession area to use them as weapons against political dissidents, and it analyzes the intricate relations among the Nationalist Party, local elites, and the Shanghai courts during the Nanjing decade (1927–1937). Building on recent studies that pay attention to the limited success of the Nationalist Party’s policy of putting the judiciary under Party control, this study demonstrates that the process of establishing the Nationalist Party’s dominance over the Shanghai courts was highly contested. The interplay between the Nationalist Party’s effort to gain control over the Shanghai courts by building formal and informal institutions and the local elites’ appropriation of their own social networks rendered the Shanghai courts vulnerable not only to the Party’s intervention, but also to the influence of social forces. I argue that due to the weak authority of the Shanghai courts, the Nationalist Party’s use of law against political foes could be a double-edged sword.     

Social scientists and native title cases in Australia

Abstract

Recent legal developments in Australia have led the courts to reject the doctrine of terra nullius, which denied pre-existing Aboriginal rights to land ownership, and Aboriginal prior occupation and ownership of land are now acknowledged. However, in the absence of consent determinations the courts have to evaluate the justification for legally recognizing native title based on specific local evidence for continuities in the traditional customs and laws of Aboriginal claimants since British sovereignty. Much of the evidence for such continuities can come from the Aboriginal claimants themselves. However, proving the time, depth and relevance of these continuities and presenting them in a form that is considered acceptable by the courts has drawn upon the ‘expertise’ of academics. This paper considers the types of evidence that anthropologists, linguists, historians and archaeologists are able to present and makes some suggestions as to how this could be improved in the future.     

Mixed messages & bounded rationality: The perverse consequences of real ID for immigration policy

Policies concerning undocumented immigrants are inevitably ambivalent, creating uncertainty and confusion in the implementation process. We identify a clear example of this ambivalence —U.S. law setting standards for determining the credibility of asylum seekers—that resulted in an increase in asylum grants despite policymakers' intention to make it harder for individuals to obtain the status. We argue that this law, The REAL ID Act of 2005, sent mixed messages to immigration judges (IJs), street-level bureaucrats who implement immigration policy. It increased IJ discretion, but set vague limits. We theorize that IJs, behaving in a bounded rationality framework, use their professional legal training as a short-cut and look primarily to the courts for guidance. Our evidence supports our argument. After the passage of the REAL ID Act, IJ decision-making is more closely aligned with the preferences of their political and legal principals, and, in the final score, the federal circuit courts are the winners.     

Controlling Forum Choice and Controlling Policy: Congress,Courts and the IRS

Considerable scholarly attention has been paid to litigation and its influence on social and bureaucratic policy. One area of research has focused on interest group litigation. Another area of scholarship has shown that Congress encourages individual use of the courts to monitor and control bureaucratic behavior. In several areas of law, litigants have a choice of forum by deliberate legislative design, which is sometimes derided as “forum shopping.” Little attention has been paid to the dominant national political coalition's ability to encourage forum shopping through legislation and the appointment process. One area of law that the coalition can encourage forum shopping is in challenging tax audits. It can do so through implict legislative signals and the appointment process to influence litigants to sue the Internal Revenue Service in the forum that offers the litigant the greatest chance of success. Given the prominent role of courts in setting and determining policy and given the particular prominence of taxes and tax policy over the past three decades, whether and where tax litigants choose to sue is critically important to understanding the dynamics of both tax policy and tax enforcement, as well as public policy creation and change. To demonstrate the influence of political forces on tax forum choice, I compare tax and district court filings from 1994 through to 2000. I find that as the Tax Court and national political coalition become more conservative, more taxpayers sue in the Tax Court and this “forum shopping” choice is supported by the national political coalition.     

Tweet Justice: The Canadian Court’s Use of Social Media

ABSTRACT

Like other political institutions in Canada, the judiciary has entered the digital age. Indeed, Canadian courts have been using Twitter for almost a decade. Despite this, there has been very little systematic examination of how Canadian courts use Twitter and the nature of the content they produce. While digital technologies create new challenges for all political actors, this is especially so for the courts, which exist in a very “traditional and conservative environment”. In this research note, we develop a framework for analyzing court-produced content on social media. This framework draws from concepts from digital politics and legal studies. We then apply this framework by conducting a content analysis of tweets from active court Twitter feeds in Canada.     

Donor‐Driven Justice and its Discontents: The Case of Rwanda

Never before was a process of doing justice driven so strongly from the outside as in post‐genocide Rwanda. Not only did the 1994 genocide lead to the founding of the International Tribunal, but it also induced intensive donor involvement in domestic attempts to ‘break the cycle of hatred’— from the work done by the national courts and the Unity Commission to the gacaca. In this sense, Rwanda became the forerunner of a much wider trend, towards a judicialization of international relations, for instance through an emphasis on international criminal law. However, the past decade of donor involvement in Rwanda in general, and the case of the gacaca in particular, show us how this specific — technocratic, de‐contextualized — emphasis on justice might seem innocuous at first glance, but carries dangers within it, particularly if it takes place in an increasingly autocratic and oppressive political environment like that of contemporary Rwanda.     

The statistical politics of exceptional territories

The so-called Rotterdam Act enables municipal governments in the Netherlands to bar poor households with no or limited residential history in the metropolitan area from moving into certain neighborhoods. Although evidently at odds with principles of equality enshrined in law, the Act has emerged as a standard part of the policy tool kit. This article seeks to explain how the Rotterdam Act came to pass. Asking this question sets us on the path of reconstructing how specific urban areas suffering from extraordinary problems were identified and how using exceptional measures to exclude specific groups were instituted. In a word, we are interested in the construction of exceptionality. We show that the construction of exceptional territories is based on the interplay of discretionary power and statistical calculation. We discuss the wider relevance of our analysis to the emerging field of critical data studies and for understanding the links between sovereignty, territory and statistics in constitutional democracies.     

Legal geographies and ecological invisibility: The environmental myopia of evidence

This study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function—obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court’s efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court’s geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.