Public Law and Courts

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

Tommaso Pavone University of Oslo
,
Øyvind Stiansen University of Oslo

Abstract

Political scientists often presume that courts can only influence policy if they are solicited in a dispute. Conversely, we theorize the shadow effect of courts: Policymakers preemptively altering policies in anticipation of judicial review. Building on American studies tying these preemptive reforms to interest group litigation and political support for judicial review, we elaborate a theory capable of traveling to less litigious and judicialized contexts. We argue that in these settings shadow effects may still emerge when bureaucratic conflicts threaten to trigger adjudication and policymakers resisting judicial interference seek to preclude courts from building caselaw. To illustrate our theory, we trace how a sudden overhaul of welfare policy in Norway- a country with limited judicial review and interest group litigation- was triggered by an administrative conflict and government efforts to avoid interference by an often-overlooked international court. Our findings advance research on judicial impact, resistance to courts, and bureaucratic politics.

Content

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Supplementary material

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Transparency Appendix (TRAX) for “The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform”
A transparency appendix containing annotated citations for all archival and textual evidence referenced in the working paper, “The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform.”

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