IDEAS home Printed from https://ideas.repec.org/a/sae/jothpo/v12y2000i3p269-304.html
   My bibliography  Save this article

The Legislative Design of Judicial Review

Author

Listed:
  • Charles R. Shipan

Abstract

Judicial review of agency decisions clearly affects policy outcomes, both because the courts can overrule an agency's decision and because the threat of judicial review can affect the agency's choice of policy. At the same time, however, judicial review does not simply `exist', but rather is a political variable that a legislature can use to affect policy outcomes. This paper explores how a legislature can use judicial review to influence policy outcomes and examines how review can affect the utility received by each actor. The game-theoretic analysis demonstrates that (1) legislatures can use judicial review strategically in order to obtain more-preferred outcomes, (2) a legislature's ability to improve policy outcomes through the strategic employment of judicial review is not wholly dependent on its ability to respond to the judiciary's actions (i.e. on having the last move in the policy game), and (3) the judiciary's type (i.e. the extent to which it acts restrained) influences outcomes and the actions of the legislature. Finally, I examine the design of judicial review in environmental policy to illustrate and support the theory.

Suggested Citation

  • Charles R. Shipan, 2000. "The Legislative Design of Judicial Review," Journal of Theoretical Politics, , vol. 12(3), pages 269-304, July.
    • Handle: RePEc:sae:jothpo:v:12:y:2000:i:3:p:269-304
    DOI: 10.1177/0951692800012003002
    as

    Download full text from publisher

    File URL: https://journals.sagepub.com/doi/10.1177/0951692800012003002
    Download Restriction: no
    File URL: https://libkey.io/10.1177/0951692800012003002?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    References listed on IDEAS

    as
    1. Spiller, Pablo T., 1992. "Rationality, decision rules, and collegial courts," International Review of Law and Economics, Elsevier, vol. 12(2), pages 186-190, June.
    2. Segal, Jeffrey A., 1997. "Separation-of-Powers Games in the Positive Theory of Congress and Courts," American Political Science Review, Cambridge University Press, vol. 91(1), pages 28-44, March.
    3. Schwartz, Edward P, 1992. "Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(2), pages 219-252, April.
    4. Steunenberg, Bernard, 1992. "Congress, Bureaucracy, and Regulatory Policy-Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(3), pages 673-694, October.
    5. Bawn, Kathleen, 1996. "Strategic Responses to Institutional Change: Parties, Committees and Multiple Referral," Public Choice, Springer, vol. 88(3-4), pages 239-258, September.
    6. Hammond, Thomas H & Knott, Jack H, 1996. "Who Controls the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-institutional Policy-Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 12(1), pages 119-166, April.
    7. Thomas Romer & Howard Rosenthal, 1978. "Political resource allocation, controlled agendas, and the status quo," Public Choice, Springer, vol. 33(4), pages 27-43, December.
    8. Gely, Rafael & Spiller, Pablo T, 1990. "A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(2), pages 263-300, Fall.
    9. Spiller, Pablo T & Tiller, Emerson H, 1997. "Decision Costs and the Strategic Design of Administrative Process and Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 347-370, June.
    10. Ferejohn, John & Shipan, Charles, 1990. "Congressional Influence on Bureaucracy," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(0), pages 1-20.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Pablo T. Spiller & Rafael Gely, 2007. "Strategic Judicial Decision Making," NBER Working Papers 13321, National Bureau of Economic Research, Inc.
    2. Martin van Hees & Bernard Steunenberg, 2000. "The Choices Judges Make," Journal of Theoretical Politics, , vol. 12(3), pages 305-323, July.
    3. Moser, Peter, 1999. "The impact of legislative institutions on public policy: a survey," European Journal of Political Economy, Elsevier, vol. 15(1), pages 1-33, March.
    4. John M. de Figueiredo & Edward H. Stiglitz, 2015. "Democratic Rulemaking," NBER Working Papers 21765, National Bureau of Economic Research, Inc.
    5. Mat McCubbins & Roger Noll & Barry Weingast, 2005. "The Political Economy of Law: Decision-Making by Judicial, Legislative, Executive and Administrative Agencies," Discussion Papers 04-035, Stanford Institute for Economic Policy Research.
    6. Álvaro Bustos & Tonja Jacobi, 2014. "A Theory of Judicial Retirement," Documentos de Trabajo 451, Instituto de Economia. Pontificia Universidad Católica de Chile..
    7. Mueller, Bernardo, 2001. "Institutions for commitment in the Brazilian regulatory system," The Quarterly Review of Economics and Finance, Elsevier, vol. 41(5), pages 621-643.
    8. Ryan J. Owens, 2010. "The Separation of Powers and Supreme Court Agenda Setting," American Journal of Political Science, John Wiley & Sons, vol. 54(2), pages 412-427, April.
    9. George Tridimas, 2010. "Constitutional judicial review and political insurance," European Journal of Law and Economics, Springer, vol. 29(1), pages 81-101, February.
    10. Gennaioli, Nicola & Shleifer, Andrei, 2007. "Overruling and the instability of law," Journal of Comparative Economics, Elsevier, vol. 35(2), pages 309-328, June.
    11. Bernard Steunenberg, 2010. "Is big brother watching? Commission oversight of the national implementation of EU directives," European Union Politics, , vol. 11(3), pages 359-380, September.
    12. Tom S. Clark, 2009. "The Separation of Powers, Court Curbing, and Judicial Legitimacy," American Journal of Political Science, John Wiley & Sons, vol. 53(4), pages 971-989, October.
    13. Moszoro, Marian W. & Spiller, Pablo T., 2014. "Third-Party Opportunism and the Theory of Public Contracts: Operationalization and Applications," MPRA Paper 101592, University Library of Munich, Germany.
    14. Mario Bergara & Barak Richman & Pablo T. Spiller, 2002. "Modeling Supreme Court Strategic Decision Making: Congressional Constraint," Documentos de Trabajo (working papers) 1402, Department of Economics - dECON.
    15. Laura I. Langbein, 2000. "Ownership, empowerment, and productivity: Some empirical evidence on the causes and consequences of employee discretion," Journal of Policy Analysis and Management, John Wiley & Sons, Ltd., vol. 19(3), pages 427-449.
    16. Sharece Thrower, 2019. "Presidential action and the Supreme Court: The case of signing statements," Journal of Theoretical Politics, , vol. 31(4), pages 677-698, October.
    17. Assaf Meydani & Shlomo Mizrahi, 2010. "The Relationship Between the Supreme Court and Parliament in Light of the Theory of Moves: the Case of Israel," Rationality and Society, , vol. 22(1), pages 55-82, February.
    18. Karakas, Leyla D., 2017. "Political rents under alternative forms of judicial review," International Review of Law and Economics, Elsevier, vol. 52(C), pages 86-96.
    19. Keith E. Schnakenberg & Ian R. Turner & Alicia Uribe-McGuire, 2017. "Allies or commitment devices? A model of appointments to the Federal Reserve," Economics and Politics, Wiley Blackwell, vol. 29(2), pages 118-132, July.
    20. Thomas H. Hammond, 2015. "A unified spatial model of American political institutions," Chapters, in: Jac C. Heckelman & Nicholas R. Miller (ed.), Handbook of Social Choice and Voting, chapter 11, pages 182-200, Edward Elgar Publishing.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:sae:jothpo:v:12:y:2000:i:3:p:269-304. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: SAGE Publications (email available below). General contact details of provider: .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.