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

Tommaso Pavone, Oyvind Stiansen

Research output: Contribution to journalArticlepeer-review

Abstract

We challenge the prevalent claim that courts can only influence policy by adjudicating disputes. Instead, we theorize the shadow effect of courts: policy makers preemptively altering policies in anticipation of possible judicial review. While American studies imply that preemptive reforms hinge on litigious interest groups pressuring policy makers who support judicial review, we advance a comparative theory that flips these presumptions. In less litigious and more hostile political contexts, policy makers may instead weaponize preemptive reforms to preclude bureaucratic conflicts from triggering judicial oversight and starve courts of the cases they need to build their authority. By allowing some preemptive judicial influence to resist direct judicial interference, recalcitrant policy makers demonstrate that shadow effects are not an unqualified good for courts. We illustrate our theory by tracing how a major welfare reform in Norway was triggered by a conflict within its Ministry of Labor and a government resistance campaign targeting a little-known international court.

Original languageEnglish (US)
Pages (from-to)322-336
Number of pages15
JournalAmerican Political Science Review
Volume116
Issue number1
DOIs
StatePublished - Feb 26 2022
Externally publishedYes

ASJC Scopus subject areas

  • Sociology and Political Science
  • Political Science and International Relations

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