Taking the Law to Court: Citizen Suits and the Legislative Process

The institution of citizen suits is a decentralized form of public participation that allows citizens to influence the implementation of public laws in courts. How does this institution influence policymaking? This article proposes a model of citizen suits. It then analyzes how this institution influences legislative decisions. The legislature bargains to choose the budget, distributive spending, and spending on an ideologically contested public good (e.g., health care or environmental protection). I find that citizen suits enable courts to forge a compromise between opponents and proponents of the public good by responding to the diverse claims of citizens. Anticipating the mobilization of citizens in courts, legislators in turn craft more socially efficient bills, with less distributive spending, which better represent the distribution of preferences for the public good compared to when citizens have no role in the implementation of legislation.     

Judicial politics in Britain: Patrolling the boundaries

This study considers judicial policy‐making in Great Britain by noting the peculiarly British institutional restraints on judicial action of parliamentary sovereignty, the resulting subordination of all courts to the legislative branch and the absence of a codified charter of rights or constitution. Though there is no judicial power to annul legislative or executive actions, British courts and judges still play a small, but significant, role in policy‐making through the common law and, in particular, through judicial review of adminstrative actions. A written bill of rights would likely draw courts further into the the political arena and politicise the appointment of judges.     

Legislative Organization and Pollution Taxation

The role of political institutions in shaping public policy has been analyzed in isolation from corruption, and legislative organization (specifically, bicameralism) has received minimal attention. We analyze pollution taxation when decisions are influenced by several veto players, such as legislative chambers. Our theory predicts that an increase in the number of veto players (e.g., moving from uni- to bi-cameralism) pushes the pollution tax towards the social optimum, with the effect being conditional on corruption. As such, dispersion around the optimal tax is lower under bicameralism. Empirical tests – using data from 86 countries – support the theory.     

Legislative Veto Players and the Effects of International Human Rights Agreements

Do national legislatures constitute a mechanism by which commitments to international human rights treaties can be made credible? Treaty ratification can activate domestic mechanisms that make repression more costly, and the legislative opposition can enhance these mechanisms. Legislative veto players raise the cost of formalistic repressive strategies by declining to consent to legislation. Executives can still choose to rely on more costly, extralegal strategies, but these could result in severe penalties for the leader and require the leader to expend resources to hide. Especially in treaty member‐states, legislatures can use other powers to also increase the cost of extralegal violations, which can further reduce repression. By using an empirical strategy that attempts to address the selection effects in treaty commitment decisions, I show that positive effects of human rights treaties increase when there are more legislative veto players.     

Agency governance and enforcement: the influence of mission on environmental decisionmaking

Administrative agencies seeking to impose sanctions for regulatory violations can handle matters internally or through civil or criminal courts. Organizational culture, legal constraints, and political and private actors may influence governance and hence choice of enforcement venue. An enforcement behavior model is constructed and tested empirically using a 1990–1997 sample of Environmental Protection Agency (EPA) air, water, and hazardous waste penalty cases involving individuals. While EPA's enforcement arm embraces the mission of its regulatory arm—minimizing environmental harm—in part, it also has attributes of a police and prosecution force—specifically deterring (and maximizing social welfare) or incapacitating individual violators. Nevertheless, EPA may fail to minimize violations of and generally deter non‐culpable individuals who are affiliated with large firms. © 2002 by the Association for Public Policy Analysis and Management.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

Coalition Government,Legislative Institutions,and Public Policy in Parliamentary Democracies

Most democracies are governed by coalitions, comprising multiple political parties with conflicting policy positions. The prevalence of these governments poses a significant question: Which parties' electoral commitments are ultimately reflected in government policy? Recent theories have challenged our understanding of multiparty government, arguing that the relative influence of coalition parties depends crucially on institutional context. Specifically, where institutions allow credible enforcement of bargains, policy should reflect a compromise among all governing parties; where such institutions are absent, the preferences of parties controlling the relevant ministries should prevail. Critically, empirical work has thus far failed to provide direct evidence for this conditional relationship. Analyzing changes in social protection policies in 15 parliamentary democracies, we provide the first systematic evidence that the strength of legislative institutions significantly shapes the relative policy influence of coalition parties. Our findings have implications for our understanding of coalition government, policymaking, and electoral responsiveness.     

The Balanced Budget Amendment: How Would It Be Enforced?

In this article we evaluate the likely effect of enforcement provisions to congressional proposals for a constitutional balanced budget amendment. We define four general areas of enforcement: legislative, executive, judicial, and public opinion. Each of these areas is in turn evaluated along three criteria: political feasibility (can it be enacted and consistently implemented?), effectiveness (is it likely to result in “balance”?), and implications for redistribution of power across branches. We conclude from this analysis that there are limits associated with all balanced budget enforcement provisions. A reliance on one or no explicit enforcement provision would limit the credibility of any constitutional amendment. Ultimately, the enforcement of the amendment would inevitably rest on the commitment of legislators to producing a balanced budget, and in the absence of such a commitment, any enforcement provision would not likely succeed.     

Taking enforcement on its own terms: EPA's heavy‐duty diesel engine litigation

The authors of Regulation by Litigation characterize the US Environmental Protection Agency (EPA)'s enforcement action against diesel engine manufacturers as an effort to achieve by litigation what the Agency was unable to achieve by regulation: immediate reductions in emissions of nitrogen oxides. By substituting litigation for rulemaking, the authors of the book argue, the Agency avoided political and judicial accountability and put itself on a suboptimal policy track. This comment argues that the diesel engine litigation may be better understood as what it purported to be, an enforcement action, not rulemaking in disguise. The authors' characterization of the litigation is questionable on at least two grounds. First, it fails to fully appreciate the distinct functions of enforcement and policymaking in a regulatory setting. The goal of enforcement is not primarily to make policy, but to enforce it – to punish violators, deter future violations, and mitigate harms caused by violations. That goal supplies the proper measure of the litigation's success. Second, in applying public choice analysis to create a story of agency circumvention of appropriate rulemaking procedures, the authors' account misses key features of how agency enforcement decisions are made – and were made in this litigation. This latter shortcoming raises broader questions about the difficulties of applying public choice analysis in complex institutional settings.     

The Decline of the Legislative Veto: Federal/State Comparisons and Interactions

Legislative veto systems originated in the 1930s. Their numberincreased steadily until the early 1980s and then declined significantly.The decline of the legislative veto is attributable primarilyto decisions by a number of state supreme courts between 1980and 1984, and by the U.S. Supreme Court in 1983. Almost allcourt decisions have held the legislative veto to be an unconstitutionalviolation of the separation of powers. In addition, most proposalsto authorize the legislative veto by state constitutional amendmenthave been rejected by voters. There has also been a decreasein legislators' enthusiasm for the legislative veto, even instates where it has not been declared unconstitutional. Legislatorshave found other ways to control administrative agencies. Inexamining the decline of the legislative veto, one finds thatthe federal government exercised little influence over the states,the states exercised still less influence over the federal government,but the states did significantly influence one another.     

Projecting the impact of new sentencing laws on prison populations

Recent efforts at sentencing reform have led to the consideration or enactment of new sentencing structures, including mandatory-minimum sentences, flat-time sentences, and sentencing guidelines. There is a clear need for estimates of the impacts that new sentencing laws would have on sentencing practice and on corrections programs, both as an informational input during legislative debate and as a basis for planning once a particular law is enacted. This study develops a methodology for estimating the impacts of alternative sentencing policies on prison populations. The methodology is demonstrated with an estimation of the impacts on the Pennsylvania state prison system of a mandatory-minimum sentencing bill which was considered by the Pennsylvania legislature.This research was supported in part by SPC No. 568788 funded by the Pennsylvania Governor's Justice Commission. The assistance of the Governor's Justice Commission, the Pennsylvania Association of Probation, Parole, and Correction, the Pennsylvania Bureau of Correction, the Pennsylvania Department of Education, and the Subcommittee on Crime and Correction of the Pennsylvania House Judiciary Committee in providing data and information is gratefully acknowledged. Appreciation is also due to Alfred Blumstein and Patrick Larkey for providing helpful comments on an earlier draft of this paper.     

General courts,specialized courts,and the complementarity effect

Among the major decisions any legal system must make is deciding whether to establish general courts with broad jurisdiction, or specialized courts with limited jurisdiction. Under one influential argument—advanced by both judges and legal theorists—general courts foster coherence within the legal system. This Article identifies a distinct effect of establishing general courts: the “complementarity effect.” In the case of complementarity, general courts strategically apply different principles in different fields, such that litigants losing in one sphere (e.g., public law) are compensated in another (e.g., private law). We support this conjecture by analyzing three case studies.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

十八届四中全会司法改革新举措之解读

党的十八届四中全会《决定》明确了一系列司法改革新举措,对司法体制改革作出新的重大部署。最高人民法院设立巡回法庭,探索设立跨行政区划的人民法院和人民检察院,建立领导干部干预司法活动、插手具体案件处理的记录、通报和责任追究制度,从制度和体制上防范和禁止地方行政权力干涉,保障审判权、检察权依法独立行使;推进以审判为中心的诉讼制度改革,实行审判权和执行权相分离体制,探索建立检察机关提起公益诉讼制度,实行立案登记制,从司法权运行机制和职能定位上强化司法权威,促进公正司法,保障国家和公民权益。     

Legislative agenda-setting in parliamentary democracies

Various strands of literature in comparative politics regard governments as the only noteworthy initiators and mainsprings of legislative policy making in parliamentary democracies. Opposition activity in policy making is more often associated with the intention to prevent, rather than to shape, policy. Does this perception reflect real‐life politics? To answer this question, this article discusses different arguments that link institutional and policy‐related characteristics to the incentives and constraints of different government and parliamentary actors to initiate or co‐sponsor legislative bills. More specifically, it relates policy‐, office‐ and vote‐related incentives, as well as institutional and resource constraints of legislative actors, to the likelihood that these actors will take the lead in legislative agenda‐setting. These arguments are confronted with original data on the universe of all legislative bills in four parliamentary systems over one and a half decades. The article concludes that opposition and, in particular, bipartisan agenda‐setting is indeed rare. Yet, in contrast to widely held maxims, it is neither absent nor spurious, but related to the allocation of power and the intensity of ideological conflict both within and between the (coalition) government and parliament.     

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.     

Defensive Enforcement: Human Rights in Indonesia

The objective of the article is to examine the human rights enforcement in Indonesian legal and political system. This is done by studying the legal basis of human rights, the process of proliferation of human rights discourse, and the actual controversies of human rights enforcement. The study has the effect of highlighting some of the immense deficits in ensuring that violations are treated under judicial procedure and the protection of human rights is available and accessible for victims. The author inevitably came into a conclusion that the openness of legal and political arenas for human rights discourses is not followed with a tangible impact on the entitlement positions of the people. The problems of the weak institutions and the unenthusiastic enforcement show that, in Indonesia, human rights are formally adopted as a political strategy to avoid substantial implementation.     

Medicaid Managed Care for Children with Special Health Care Needs: Examining Legislative and Judicial Constraints on Privatization

Over the past decade, much has been written about the results of reinventing government. Most research has examined the effects of executive or managerial perspectives. Using David Rosenbloom's competing perspectives model, we examine Medicaid managed care programs for children with special health care needs to illustrate the influence of legislative and judicial institutional perspectives on the reinvention movement. Legislative and judicial responses to the reinvention of Medicaid managed care reveal the outer limits of what managed care and related executive reforms can accomplish in a Constitutional system that is based on checks and balances among competing institutional perspectives. Furthermore, relative to Medicaid managed care, legislative and judicial responses conserve public responsibility to society's most vulnerable populations. In the long run, the balance of institutional perspectives and values—not managerial innovation per se—will influence public administration.     

Constituency characteristics and legislative preferences

An important concern for testing any theory of legislative politics is how to measure legislative preferences. No existing measures are immune to criticism, so sound advice should be based on a balanced assessment of various types of measures. This study focuses on the ability of constituency characteristics to predict Senate roll call votes. Even in the best possible case, constituency-characteristic measures are shown to be deficient both absolutely and relative to supposedly crude, vote-based measures which as ADA ratings. The implication is that constituency-characteristic measures are inappropriate as direct measures of legislative preferences. However, the possibility remains that for some applications they are useful indirect measures, e.g., as right hand side variables that covary with legislative behavior of interest.