The Judicial Theory of a Reasonable Public Servant

Contemporary theory of the constitutionally reasonable public servant, established by the U.S. Supreme Court in 1982 in Harlow v. Fitzgerald, is measured in reference to clearly established constitutional or statutory rights that a reasonable person would have known. In this article, the author seeks to elucidate the evolving contours of the objective reasonableness standard and examines how federal courts have applied it. To gain a firsthand impression of how public officials challenged in federal courts are measuring up to the objective reasonableness standard, the author provides a snapshot of 449 recent court cases selected from two federal circuits, the Eighth and the District of Columbia circuits. He concludes that public officials in these two circuits have fared very well under the standard of objective reasonableness. The flip side is that aggrieved individual citizens must carry a heavy burden to protect their constitutional rights.     

“It's the Central Government's Fault”: Elected Regional Officials' Use of Blame‐Shifting Rhetoric

This article investigates regional officials' use of blame‐shifting rhetoric in times of heated public criticism of unpopular regional policy decisions. Based on a content coding of nearly 500 political accounts from elected regional officials it is shown that “it's the central government's fault” is the most frequently used excuse when regional officials publicly defend unpopular decisions to cut public health care. The article finds that this excuse is used more by regional leaders (mayors and chairmen of regional boards) than by other elected officials and that partisan competition affects how often this excuse is used.     

Businessman Candidates

Why and when do businessmen run for public office rather than rely upon other means of influence? What are the implications of their participation for public policy? We show formally that “businessman candidacy” and public policy are jointly determined by the institutional environment. When institutions that hold elected officials accountable to voters are strong, businessmen receive little preferential treatment and are disinclined to run for office. When such institutions are weak, businessmen can subvert policy irrespective of whether they hold office, but they may run for office to avoid the cost of lobbying elected officials. Evidence from Russian gubernatorial elections supports the model's predictions. Businessman candidates emerge in regions with low media freedom and government transparency, institutions that raise the cost of reneging on campaign promises. Among regions with weaker institutions, professional politicians crowd out businessmen when the rents from office are especially large.     

Conflicts of Values and Political Forgiveness

Citizens have a right to be governed by officials with an acute awareness of the conflicts between the constitutional values of liberal democracy. Such an awareness is an integral part of a public official's integrity. That is why citizens should have a say in deciding whether to remove from office an official with such integrity. In this article, this type of conflict between constitutional values is translated into the terms of an individual official's decision making with the help of moral theory. This yields two paradoxes: one focusing on the decision maker and the other on the object of his or her decisions: the citizen. These paradoxes lead to the following questions: If running a liberal democratic constitution essentially involves moral complexity, should we not try to have it run by officials with a sensitivity to that complexity? And if officials with that sensitivity are bound to commit moral wrongs because of complexity, do not we owe them something like political forgiveness? The paradoxes are used to formulate conditions for political forgiveness.     

Romanticizing bureaucratic leadership? The politics of how elected officials attribute responsibility for performance

A core task for elected officials is to hold bureaucratic leaders responsible, but how do they determine if public managers actually influence outcomes? We propose that partisan and leadership heuristics affect how politicians apply a logic of individualized responsibility, that is, focus on individual bureaucrats rather than situational factors to explain organizational outcomes. We match survey data of local elected officials in Denmark with individual partisan variables and objective performance data about the schools they oversee. We provide evidence that partisan beliefs matter, with conservative elected officials more willing to pursue a logic of individualized responsibility. We also find that elected officials are more likely to assume that bureaucratic leaders determine organizational outcomes where performance is very high or low, a leadership attribution heuristic previously established in private sector studies. We argue that our findings have important implications for contemporary governance, given the growing reliance on performance metrics to assign responsibility.     

The Effect of Limiting Participation in Special District Elections to Property Owners: A Research Note

Scholars have found significant policy differences between special districts governed by elected officials and those overseen by appointees. However, their research ignores U.S. Supreme Court rulings that allow many special districts to restrict electoral participation to property owners. This study finds that the presence of officials elected by property owners upon a district's governing board is related to a reduced reliance upon property taxes for revenues and a greater reliance upon service charges. Using Census data sets and a review of state statutes, the study demonstrates that board elections can be an effective means for property owners to influence policy.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.     

Political Efficacy through Deliberative Participation in Urban China: A Case Study on Public Hearings

Since the early 2000s, local governments in China have been holding public hearings to solicit opinion from state, city and township residents about legal and administrative issues. Having begun with a relatively small participation rate, in the last 10 years public hearings have achieved sustainable growth in their frequency and visibility in mainstream and social media. Given that public hearings do not offer decision-making power, the increased participation rate reveals an influence not necessarily on public policy making, but on urban citizens’ attitudes towards available participatory and deliberative mechanisms. This article refers to three bodies of literature: political efficacy, deliberative democracy, and social movements. The literature on political efficacy reveals the link between political attitudes and behaviors. The literature on deliberative democracy is an important part of the analysis because Chinese public hearings are based on deliberative designs imported from North America and Western Europe. The literature on social movements complements the deliberative analysis undertaken in an authoritarian context by providing it with conceptual tools to adapt to this new setting. The public hearings held in Guiyang (Guizhou), Wuhan (Hubei) and Qingdao (Shandong) in 2010 and 2011 are used as case studies to demonstrate participation demographics and the impact of public hearing participation on city dwellers. This article investigates the impact of participation in public hearings on the political efficacy of Chinese citizens, and, based on the results, contends that such participation equips the participants with an increased level of political efficacy, and enables the development of political networks and citizen strategies that help to constrain local officials.     

Understanding Shared Roles in Policy and Administration: An Empirical Study of Council‐Manager Relations

Recent literature in public administration emphasizes enhanced collaboration between elected and administrative officials. The complementarity view is presented as an alternative to the traditional politics–administration dichotomy. At the center of this new perspective lies the concept of shared roles between elected officials and public administrators with respect to policy making and administration. This article expands the emerging literature on role sharing by proposing and testing new variables to understand what enhances the policy‐making role of city managers and the administrative role of elected officials. Employing data collected from a nationwide survey of city managers and utilizing structural equation modeling methodology, this research finds that the council’s expectations and the city manager’s role conception significantly influence the city manager’s involvement in policy making, while the context of policy making, the city manager’s support, and the council’s access to resources affect elected officials’ involvement in administration. This article aims to make a cumulative contribution to the literature on role sharing.     

Explaining State High-Courts' Selective Use of State Constitutions

Although state constitutions offer substantial policy-makingopportunities, state courts are reluctant to base decisionson independent state constitutional law. Using state high-courtjudicial review decisions from 1981 to 1985, we tested a modelpredicting countermajoritarian state-law rulings. Legal andpolitical variables best predicted state constitutional decisions.Intragovernmental conflicts were particularly likely to resultin state-law decisions, while courts were especially reluctantto base civil liberties decisions on state constitutions. Casesbrought by government officials were likely to be decided onstate constitutional principles; state-law decisions were alsolikely to emerge from conservative states and states with tradilionalisticpolitical cultures. Although these latter findings stand apartfrom previous research connecting some forms of judicial activismto liberal political environments, they seem consistent withthe element of American conservatism seen particularly in traditionalisticstates (in the South and Southwest) demanding protection ofstate autonomy in the realms of policy development historicallyleft to the states.     

Getting to Sweden,Part I: War and Malfeasance, 1720–1850

How and why some countries were able to make the historical transition from a patrimonial, nepotistic and corrupt bureaucracy to a clean, Weberian and professionalised one is still an under‐studied topic in the literature on corruption. This article presents original data on such a transition in the case of Sweden, drawing on court hearings of cases of malfeasance among public officials in the period 1720–1850. It is argued, theoretically, that an important explanation for why the Swedish bureaucracy was able to break out of the collective action trap of corruption relates to Charles Tilly's theory of the importance of war for state‐making. Rather than viewing war‐making in itself as a driver of change, however, this article pinpoints the importance of having lost a significant war – in the Swedish case, the war against Russia in 1808–9 – and the constitutional and regime changes this set in motion. Drawing on comparative data on malfeasance, the similarities in this regard between the Swedish and Danish cases are highlighted.     

The Politics–Administration Dichotomy: An Empirical Search for Correspondence between Theory and Practice

The politics–administration dichotomy has been one of the most disputed theories of public administration. Despite serious critiques, neither the theoretical utility nor the normative power of the dichotomy has totally disappeared over the past decades. The dichotomy has been advocated on the grounds that the dichotomous division of labor and authority between elected and administrative officials increases the democratic accountability and planning ability of public administrators. This article first builds a theoretical model of the politics–administration dichotomy and then evaluates the model using empirical data collected from a nationwide sample of city managers serving in council-manager local governments. Results of structural equation modeling illustrate that the politics–administration dichotomy fails to obtain its predicted tendencies in actuality. The authors interpret the findings in light of the contemporary public administration literature. The article aims to make a theoretical-empirical contribution to one of the most challenging questions in public administration.     

Constitutional courts as veto players: Divorce and decrees in Italy

Abstract. This article argues that constitutional courts in Western European parliamentary systems should be integrated into discussions of how public policies are changed, rather than being viewed as an external veto point. It attempts to bridge a gap between a judicial politics literature that focuses on the micro–level of individual judges' votes and comparative scholarship that operates at the macro–level. A model for viewing constitutional courts as veto players, as a third institutional actor, is proposed and is then illustrated using the cases of legalizing divorce and blocking the executive reissuing decree laws in Italy. The model considers both the indirect and direct influences that constitutional courts can exert on the policy–making process. It also facilitates understanding and explaining the role of courts, as well as legislatures and executives, in conducting the interactions and bargaining that result in policy change.     

Spending Preferences of Public Sector Officials: Survey Evidence from Finland

We examine the determinants that shape the spending preferences of public sector officials on several budgetary appropriations. Following Niskanen's budget‐maximizing theory, we test whether these officials prefer larger budgetary appropriations rather than less. We measure their preferences to increase their own bureau's appropriations and compare those against their preferences for other bureaus' appropriations. The empirical evidence is gathered via a mail survey targeting high‐level officials from different ministries in Finland. The analysis of the responses suggests that Niskanen's theory is in part supported.     

Can State Review of Local Planning Increase Housing Production?

Abstract

To increase housing production and make the distribution of affordable housing more equitable, several states subject local land use planning to review by state agencies or courts. Focusing an empirical analysis on California, this article considers the potential efficacy of these reviews in contributing to the overall supply of housing. Past studies of other intergovernmental mandates suggest that their institutional design helps determine their success.

A comparison of four states indicates that approaches differ considerably in how they determine local housing needs, evaluate local efforts prospectively or retrospectively, and penalize noncompliance. California's housing element law, which mandates prospective local planning for quantifiable housing goals, gives state staff the power to review local plans for compliance with statutory requirements. However, multivariate analysis indicates that the compliance status of California municipalities in 1994 did not predict the number of single‐family or multifamily housing permits issued from 1994 to 2000.     

Fiscal dynamics of local elected officials

The fiscal behavior of local elected officials is examined in a dynamic model where officials maximize an intertemporal objective function in two stages. Officials first decide upon an optimal mix of revenue and expenditure and then minimize loss and adjustment-cost functions. The model is tested using data from the 20 most populated U.S. cities whose mayor was elected on a four-year cycle. The empirical results support the model. Fiscal behavior differs between cities and local fiscal decisions made by elected officials are in part dependent on the timing of elections.     

The Practice of Deliberative Democracy: Results from Four Large-Scale Trials

The goal of deliberative democracy is to revitalize civic culture, improve the nature of public discourse, and generate the political will necessary to take effective action on pressing problems. While there exists a fairly substantial amount of literature on the desired features of a deliberative democracy, there is little empirical research on the practical feasibility of convening a large-scale public deliberative process.
This article describes a model of deliberative democracy which offers a practical opportunity for all citizens to participate, provides citizens extensive information about the nature of the policy problem, engages citizens in the same problem-solving context as elected officials, and uses rigorous methods. The practical feasibility of this model is assessed through four large-scale implementations, each addressing controversial and politically charged issues in cities ranging in population from 100,000 to 400,000. The conclusion from these trials is that it is possible to convene a large-scale public deliberative process that enables local governments to take effective action on previously intractable issues.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.