Breaking up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services

Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the "new triumviate" governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.     

The development and reform of court organization and administration

Over the past decade, court reform has become an integral part of the process of economic, political and administrative development. This article will examine the causes and consequences of court reform's new role. After reviewing the key national and international actors and examining the political and economic assumptions used to justify this initiative, the article will then argue that (1) the priority of judicial reform in the development agenda is linked not only to a theory of the role of courts and law in political and economic development, but also to the emergence of the field of judicial administration and court management, beginning in the United States and extending to a number of other countries; (2) the limitations built into the judicial administrative reforms implemented in OECD countries may be accentuated in the developing world; and (3) the very success of judicial administration as a field allows it to be used, in conflict with its fundamental tenets, to advance the political agendas of OECD countries as well as developing and transitional regimes. Copyright © 1999 John Wiley & Sons, Ltd.     

Judges as agents of social change: Can the courts break the affordable housing deadlock in metropolitan areas?

Abstract

Nowhere is the chasm between the races more apparent than in the physical division of metropolitan areas between inner‐city poverty and suburban affluence. Thus far, public policy efforts to introduce metropolitan perspectives into local land use regulations have been unsuccessful. The series of New Jersey Mount Laurel decisions lays out a possible path for introducing comprehensive regional planning by deploying the constitutional power of state courts. Relying on the allied professions of economics and city planning, the New Jersey Supreme Court eliminated the legal barriers to affordable housing in the suburbs.

Questions have been raised over courts’ ability to reform local government powers, but many traditional objections to the effectiveness of judicial reform seem to have been overcome in the New Jersey litigations and legislations. State courts can play an indispensable role in solving regional land use problems if they secure the support of community leadership groups.     

Housing needs and effective policies in high‐tech metropolitan economies

Abstract

What are the most effective ways to provide low‐income housing to those left behind in new economy housing markets? Do winners and losers in high‐tech competition require federal housing strategies geared to metropolitan differences? This article examines 45 large metropolitan areas grouped along a high‐tech spectrum to see who is dis‐advantaged and to deduce effective local low‐income housing strategies from market characteristics.

Finding affordable housing was, on average, more difficult for low‐income renters and owners in high‐tech economies in the 1990s. Nonetheless, high‐tech metropolitan economies, like other local/regional markets, vary greatly. Sharp differences among and within metropolitan markets make it essential that federal strategies allow local policies to respond to local conditions. To most effectively provide low‐income housing to those left behind in all markets, federal policy should target sufficient resources to severe housing needs through many more vouchers and programs that permit and encourage effective local choices.     

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.     

The courts,interest groups,and public opinion about abortion

Public preferences about the availability of abortion under various circumstances have remained fairly stable over time. Yet a standard CBS/New York Times abortion question indicates that a significant shift in opinion occurred during the 1980s, whereby the public became increasingly supportive of legalized abortion as it is now. These very different patterns of public opinion about abortion suggest that the public perceived a shift in the abortion status quo, toward more restricted access, over time, and became more supportive of current abortion policy.A model of support for legalized abortion as it is now is developed that incorporates the influences of court activities and interest-group behavior. The analysis indicates that the public reacted directly to the activities of the courts, becoming more supportive of current abortion policy in response to media coverage of court cases that challenged the abortion status quo and Supreme Court nominations and confirmations. Although absolute preferences remained largely unchanged, it appears the public perceived an increasing threat to the status quo and became correspondingly less enamored with further restrictions on the availability of abortion.     

Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY

This article examines how international institutions serve to diffuse human rights norms and create judicial capacity building in post-conflict societies. Specifically, we examine how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative have influenced the reform of domestic courts in Bosnia and Herzegovina (BiH). We place these reforms within the broader debate over restructuring the complex system of government in BiH. Since 2005, domestic courts in BiH have had jurisdiction over the following: (1) Cases which were initially under the jurisdiction of the domestic courts but remanded to the ICTY and recently returned to BiH. (2) Cases which originated at the ICTY and have been transferred to the State Court, and (3) new cases which originated and remained in the domestic court system. We find that while human rights norms have been incorporated into the new legal code, the diffusion of these human rights norms has been inadequate because of the lack of judicial capacity building. While some courts in the capital enjoy significant resources, the vast majority of cases will be tried at provincial courts which are under-funded and unable to prosecute the significant number of cases. Moreover, the government structure of BiH has had a decidedly negative impact on the prosecution of these cases. Ultimately, the rule of law requires consistency of approach and funding to protect human rights throughout the state.

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Wildavsky on budget reform

A large part of the literature on budgeting in the United States is concerned with reform. The goals of proposed reforms are couched in similar language - economy, efficiency, improvement, or just better budgeting ... However, any effective change in budgetary relationships must necessarily alter the outcomes of the budgetary process. Otherwise, why bother? Far from being a neutral matter of better budgeting, proposed reforms inevitably contain important implications for the political system, that is, the who gets what of governmental decisions (Wildavsky, 1961: p. 186). ... budgeting is a subsystem of politics, not vise versa - because of the current tendency to overload budgeting. As much as I respect the importance of budgeting and the talents of budgeteers, to substitute budgeting for governing will not work (Wildavsky, 1992b: p. 439).     

Redressing metropolitan imbalances in service delivery: A time-series intervention analysis of a user charge policy

While a quarter of a century of contributions to the literature on central city-suburb relationships indicates that within a metropolitan context suburban exploitation of central cities may not exist, there is no lessening of the desire to reduce imbalances within a particular urban service delivery sector. This paper assesses the impact of an urban administrative policy intervention aimed at shifting the burden of supporting a municipal service to those who actually use and benefit from it. An interrupted time-series quasi-experimental design is merged with a data analysis strategy employing integrated moving average models. The evidence endorses the adoption of user charges for certain urban services as an effective strategy open to urban bureaucracies for redressing urban public finance imbalances.This paper is a revision of a draft originally prepared for presentation in the session, The Sociologist as Evaluator: Policy Direction from Social Science, at the Southwestern Social Science Meetings, April, 1978 in Houston, Texas.     

A positive model of tax reform

This paper is devoted to the explanation of tax policy from a behavioural-theoretic point of view. It, for the first time, brings together within a unified framework behavioural determinants of government expenditure, taxation, and tax reform. Administrative and compliance costs associated with taxation (factors generally neglected in models of taxation), as well as tax avoidance/evasion, deadweight losses, and the costs that are involved in the tax reform process itself, play a crucial role in the model. The paper investigates how these factors influence the development of taxation and expenditure, and the occurrence of tax reform.This paper has been presented at the Congress of the European Public Choice Society, Linz (Austria), 1989. The authors would like to thank Jos de Beus, Kees Goudswaard, Hans de Groot and Jean-Dominique Lafay for their useful comments. This paper is based on our Dutch publication Belastinghervorming en politieke economie, in Belastingheffing en belastinghervorming, pp. 179–211. Preadviezen Koninklijke Vereniging voor de Staathuishoudkunde 1988. Leiden/Antwerpen: Stenfert Kroese.     

Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective

Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations. In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon. To explain why this is happening, the article introduces two ideas: first, the emergence of the judiciary as an organ of governance and its attendant problems, and second, the internally biased nature of the rights discourse which tends to reproduce binary arguments for either increasing State capacity or for increasing choice of goods in the marketplace. The article concludes by exploring lessons from the jurisprudence of other countries and international law and urges the Indian Supreme Court to reinvent a jurisprudence informed more by the social movements of the poor. A shorter version of this article is forthcoming as “Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective” in C. Rajkumar and K. Chockalingam (eds.) Human Rights, Criminal Justice, and Constitutional Empowerment: Essays in Honor of Justice V.R. Krishna Iyer (Oxford University Press, India edition, 2006).

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Presidential Bureaucratic Power and Supreme Court Justice Voting

Presidency scholars suggest that the federal bureaucracy has become presidentialized and that the federal agencies have become a primary tool for presidential policy implementation. However, in its review of federal agency litigation, the Supreme Court stands as an important monitor of executive bureaucratic action. Here, the conditions under which Supreme Court justices choose to facilitate executive bureaucratic action are assessed. This study tests the proposition that Supreme Court justices' voting decisions to support the president's bureaucratic agents are conditioned upon theoretically interesting extra-legal factors. Logistic regression analysis was conducted on justices' votes from Supreme Court cases involving cabinet and independent agencies during the years 1953–1995. The results indicate that Supreme Court justices' voting decisions to favorably review bureaucratic actions are influenced by extra-legal factors including attitudinal, political, and external concerns.     

The Phillips curve and the natural rate of inflation

Theoretical and empirical evidence is presented which indicates that a natural rate of inflation may exist for the U.S. economy, with the value of this rate being influenced both by cost conditions and by managerial target rates of return. A microfoundations model of the Phillips curve is developed which identifies some of the factors contributing to a relatively flat Phillips curve and the existence of a natural rate of inflation.     

How crude: Advocacy coalitions,offshore oil,and the self-negating belief

Although the Advocacy Coalition Framework (ACF) offers a promising approach for the study of policy change, other social science perspectives – specifically including human ecology – point to competing expectations. The ACF proposes that external perturbations are a necessary precondition for policy change; by contrast, work in human ecology draws attention to the potential for autogenic succession– cases where people or organizations act in ways that bring about their own demise. This difference in perspectives is tested with respect to a policy subsystem that has been found to offer a valuable context for examining ACF expectations, namely the U.S. federal program for offshore oil leasing. Many developments within this program have been quite consistent with ACF expectations; the rise to power of a new governing coalition in 1981, for example, did lead to a decided shift in policies, and the National Academy of Sciences did play roughly the role predicted by ACF. In addition, however, key sources of policy change were set in motion by members of the governing coalition itself – based on actions that were quite consistent with the policy core beliefs of the governing coalition, but not consistent with the assessments by independent scientists. The experience suggests that what is needed is not so much a rejection of the ACF as its refinement. Even without external perturbations, members of the governing coalition have the potential to undercut their own interests, if only because of the potential power of the self-negating belief. Ironically, this potential may be the highest in precisely those cases where the governing coalition has the greatest apparent ability to impose its own beliefs, and the lowest level of apparent need to respond to alternative or competing views.     

Pricing public sector services: The tuition gap

The large gap between the tuition charged by public colleges and universities and private ones is likely to cause severe disruptions to the private sector institutions of higher education. If it continues, private sector institutions may once again become bastions for students who can afford their services, rather than for those who merit them, and these institutions will diminish in size and diversity as well. Public sector institutions will become relatively stronger - not solely for reasons of effectiveness, efficiency, or equity - but because of the competitive advantage that the tuition gap affords them. This paper explores the feasibility and desirability of the three methods of correcting this problem, using real cost and demand data from the University of Massachusetts for illustrative purposes. It concludes the subsidization of students (rather than institutions) and raising public sector tuitions are two possible alternatives to the present tuition gap.     

Conflict and Collaboration in Wildfire Management: The Role of Mission Alignment

Responding to large wildfires requires actors from multiple jurisdictions and multiple levels of government to work collaboratively. The missions and objectives of federal agencies often differ from those of state land management agencies as well as local wildfire response agencies regarding land use and wildfire management. As wildfire size and intensity increase over time and associated annual suppression costs range between $2 billion and $3 billion, learning more about the existence and management of perceived agency differences becomes imperative within the academic and practitioner communities. This article examines the extent to which perceived mission misalignment exists among federal, state, and local actors and how well those differences are managed. Findings provide quantitative evidence that mission misalignment is greater within intergovernmental relationships than within intragovernmental relationships. Additionally, findings speak to the larger conversation around intergovernmental relationships within the federal structure and perceptions of the presence and management of potential interagency conflict.

Practitioner Points

• Potential conflict between the missions of federal and state land agencies presents a challenge for disaster management, and differing governmental levels and land‐use mandates may highlight relationships where tensions are likely greater.
• Wildfire managers may need to more proactively address relationships among federal agencies and state and local partners rather than relationships among multiple federal agencies.
• Wildfire management may benefit from increased awareness of—and discussion around—partner agencies’ stated land management philosophies and legal mandates, as structural frameworks, such as the Incident Command Structure, may not alone lead to conflict‐free collaboration.

     

Getting into the action

Using policy sciences in the federal government to create better public programs requires the right climate for analysis plus a good set of tactics for analysts to follow. The ideal climate includes close association between analysts and highest authorities, strong support from the top, the existence of expanding budgets and promising discontinuities—unusual events when the opportunity becomes ripe for dynamic change. Effective tactics for the policy science practitioner include staying in the real conversations where decisions are made, spreading the credit for findings, acquiring allies to support positions, winning early battles to prove their worth, and inviting intensive internal reviews. Suggestions on staffing and on choosing likely subjects so analysis can reap benefits, along with a list of dangers to avoid, conclude the paper. The points are illustrated with actual examples in the federal agencies.From an address to the American Association for the Advancement of Science, Boston, Massachusetts, December 28, 1969.     

When a Career Public Servant Sues the Agency He Loves: Claude Ferguson, the Forest Service, and Off-Road Vehicles in the Hoosier National Forest

Claude Ferguson, who in his own words “met the test of his lifetime,” deviated from the norms of the U.S. Forest Service articulated by Herbert Kaufman in The Forest Ranger to became a government guerrilla against the organization he loved. This profile highlights several enduring themes: the inherent tensions between democracy and bureaucracy, the many masters of career bureaucrats, how organizational culture can both empower and constrain employees, and what it means to act responsibly, ethically, and with integrity as a public servant. In addition, this case demonstrates how the Forest Service has evolved since Kaufman's classic study. First, Kaufman depicted forest rangers as “valuing the organization more than they value[d] getting their own way,” yet this profile underscores that public servants do not check their worldviews, mores, or ethics at the door. Second, Kaufman described the Forest Service's efforts to routinize the decisions of its employees in an effort to prevent allegiances to, or co‐optation by, local populations. Yet in this Administrative Profile, Ferguson's hidden strategic tactics co‐opted local stakeholders to enlist their support for a cause he deeply felt was right and just.     

The great plains Garrison Diversion Unit and the search for an environmental ethic

The Garrison Diversion Unit (GDU) was authorized by Congress in 1965. It is one of the largest and most expensive public works projects ever undertaken in the United States. When completed, it may become the last major federal irrigation scheme constructed in the west. Its principal purposes are: (1) to irrigate some 250,000 acres of arable land in North Dakota, (2) provide water for municipal and industrial use in fourteen communities, and (3) enhance recreational opportunities and fish and wildlife management programs within, and adjacent to, the canals and reservoirs resulting from its construction. The project is to be financed by hydropower sales from Lake Sakakawea, created when Garrison Dam was completed in 1956.¹ Concerted litigation, Canadian opposition, and federal budget cuts have sharply reduced the size and scope of GDU since 1984. Its irrigable acreage has been reduced by over 50%, a principal feeder reservoir has been eliminated, and provision of municipal and industrial water delivery has been moved from second to first priority by a Congressional commission. The GDU controversy illustrates the consequences of the lack of a coherent environmental ethic guiding American natural resources policy. These consequences are two-fold. First, although GDU's impacts extend to Canada, there is little agreement between the U.S. and Canada over what values should guide transboundary water resources development. Second, American beneficaries of the project define its need in pre-emptory terms - i.e., as compensation to an entire region for losses of land associated with the original construction of Garrison Dam. Opponents, meanwhile, argue their case in meliorative terms - i.e., that the costs to society of building additional water projects are not outweighed by their benefits. While both views have some merit, neither view can alone encompass the range of social, economic, and environmental consequences of complex river basin development.Operated by Martin Marietta Energy Systems, Inc. for the U.S. Department of Energy under Contract No. DE-AC05-840R21400.     

Demographic trends that will shape future housing demand

Four important demographic influences will shape housing demand in the United States: (1) the population's changing age profile, which foreshadows significant shifts in the composition of future housing demand, (2) the tendency for young men and women to remain single longer than they did in the past and to establish households in nonfamily living situations as primary individuals, (3) the widening mortality differential between the sexes, which has increased the tendency for women to outlive men, (4) a reversal of long-standing migration trends, which has brought about a redirection of settlement patterns within and outside the nation's metropolitan areas.Together, these trends will influence the type of housing people seek, and where they seek it, in three distinct ways: (1) by governing the rate of change in population of prime household-formation age, (2) by influencing the manner in which people group themselves into social units for housing purposes at different stages of the life cycle, (3) by concentrating specific socioeconomic or age strata of the population in certain places.This paper is the first in the 1975–76 series of Congressional Seminars on National Urban Growth Policy, organized by the National Planning Association and held at the Library of Congress, Washington, D.C. This seminar was held on October 15, 1975.