Law and Public Policy

D05(a) - Courts and Judicialized Policy Making 2.0: Taking the Policy Process Seriously (Policy Development)

Date: Jun 12 | Time: 03:30pm to 05:00pm | Location: 680 Sherbrooke St. West 365

Chair/Président/Présidente : Dagmar Soennecken (York University)

Co-Chair/Président/Présidente : Christine Rothmayr Allison (Universite de Montreal)

Discussant/Commentateur/Commentatrice : Matt Hennigar (Brock University)

Parliamentary Deviation from the Supreme Court: Tracking the Evolution of Policy Ideas: Shauna Hughey (McMaster University)
Abstract: In the comparative study of the courts, the relative strength of judicial review—that is, whether the judiciary’s ruling is fully binding on legislative branches or not—is believed to be an important determinant of the scope of the judiciary’s power relative to Parliament. Although Parliament may have the ability to deviate from the Court’s ruling, in practice, Parliamentary deviation is relatively weak. While scholars have argued that policy actions by legislative branches do not differ dramatically from judgments (Morton, 1999), this criticism does not fully pass scrutiny. Empirical evidence from cases such as Bedford (2013), Carter (2015), and Morgentaler (1988) suggest that the Canadian Parliament is willing to substantively deviate from the Court at key junctures. I argue that comparative studies of legislative deviation would be strengthened by building in (and building from) the literature on discursive institutionalism. Ideas and discourse are the driving force of institutional shifts and change, thereby shaping dominant policy paradigms. I investigate the role of different orders of change (policy settings, instruments, and ideas) to offer a novel conceptualization of inter-institutional dialogue across two weak- or hybrid- forms of judicial review: the UK and Canada. I am cataloguing court decisions from 2000-2020 to build a database of policy deviations in criminal cases. I will measure the types of policy change introduced at the Supreme Court that facilitate Parliamentary deviation. I theorize that competing ideas and policy instruments introduced by the Court are determinants in Parliament’s decision to deviate from the Court’s ruling.

Policy-oriented vs. court-centered: exploring competing explanations of policy change: Marc Zanoni (Guelph University)
Abstract: Court scholars have argued that courts impact policy in unique ways. This claim assumes that courts are different from other venues in how they influence policy. Depending on the framework, this may stem from different sources, whether it be rights, judicial decision-making, judicial institutions and processes, or court-parliament interactions. Nevertheless, court-centered approaches tend to emphasize the exceptional ways that courts exert policy influence. Alternatively, the public policy literature does not view courts as an important policy venue; they are often overlooked (or ignored) within the main theories of policy change and are seen as only rarely contributing meaningful policy developments. These different conclusions reflect a disconnect between the law and public policy literatures, which has important research implications. Significant impact, partial impact, no impact, backlash – court and public policy scholars do not often agree on the policy consequences of judicial decisions. This paper explores these divergent conclusions. In particular, it teases out the court-centered vs. policy-oriented approaches to identify the theoretical underpinnings that lead to differing research implications. The paper also intends to provide some insight into this debate by empirically testing court-centered vs. policy-oriented explanations. More specifically, it examines instances of policy change to determine whether courts produce unique effects (i.e., backlash, polarization, unification, etc.). Or whether courts simply reflect broader changes in a policy subsystem. Disagreements over court influence will be explored in Canadian social policy issue areas – with particular focus on cannabis and electoral policy -- in an effort to provide insights into these debates. Keywords: law and politics, court impact, policy impact, judicial policymaking, policy change, policy process.

Courts and the Policy Process: Christine Rothmayr Allison (Montreal), Dagmar Soennecken (York)
Abstract: Three decades ago, researchers started pointing out a shift in power towards the courts as a worldwide phenomenon (Hirschl 2008, Tate and Vallinder 1998) and research on courts and policy-making has proliferated since then. There is a multiplicity of concepts and the vagueness of the concept of judicialized policy making makes it a catch-all term used on any occasion where courts render policy relevant decisions, often without investigating the actual impact of the decisions on the policy-making process. Cases are often selected based on the strong presence of courts in policy-making and implementation, or in “big,” atypical court cases, with the highest courts generally being documented best. Little research comparatively investigates why in some policy fields we observe more court involvement than in others. There is, so far, also little research to investigate changes in judicialisation over time. Recent research argues that it might be more helpful to think of judicialised policy-making as one mode of policy-making (Burke and Barnes 2020; Kagan 2001) among many, instead of understanding judicialization as a simple shift of power to the courts. To address these gaps in the literature, the panel intends to discuss the following questions: How can our policy theories better account for different forms of authority or different modes of power relations between branches to advance the discussion of courts in policy making? How can we better explain variation across policy sectors and over time with respect to legal mobilization and court impact?