JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT by Bradley C. Canon and Charles A. Johnson. 2nd ed. Washington, D.C.: CQ Press, 1998. xii + 256 pages. Paper $24.95.

ISBN: 1-56802-306-5.

Reviewed by Stephen L. Wasby, Department of Political Science, University at Albany-SUNY. E-mail: wasb@cnsibm.albany.edu.

There are two ways to examine this new edition of JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT, first published in 1984 as Johnson and Canon : as a supplement for undergraduate judicial process courses and basic volume in graduate seminars, or as scholarship. The two are not unrelated because what we present to our students provides a strong view of our scholarship.

As a supplementary volume, this book continues to be a fine synthesis of public law literature on the impact of judicial rulings, particularly the U.S. Supreme Court's. Its materials are effectively arranged according to the first edition's several "populations" -- interpreting, implementing, consumer, and secondary. Unchanged in structure and approach, it is roughly the same length as the first edition, while written more tightly. New examples and citations to new literature are provided, but those hoping for more than a simple updating from the judicial process literature will be gravely disappointed.

Chapter One, "Responses to Judicial Policies," introduces the authors' model of implementation and impact based on the four populations, and contains a case study of ROE v. WADE with updated data on the number of abortions and on state limiting statutes, but without the first edition's chart on public opinion. Chapter Two's discussion of "The Interpreting Population" includes material on "Discretion and Constraints in Interpreting Judicial Decisions"; "Limited Application" of rulings (reduced from "Techniques of Non-Acceptance"); and "Factors Affecting Lower Court Interpretation," where minor changes involve renaming terms. In "The New Judicial Federalism," one of the book's few new sections, the authors cite only instances of expanded rights. While perhaps related to judicial techniques of non-acceptance," this provides an inaccurate picture of the extent of judicial federalism; moreover, in one of the "disconnects" between different sections of the book, this discussion is not linked to the later highly relevant material on state court education finance rulings after SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ.

"The Implementing Population" (Chapter Three) contains treatment of the judiciary and groups, plus "Program Adjustments after Judicial Decisions," but little is new except for paragraphs on Spriggs' and Leo's studies and a box on response to court-ordered reform in prisons. The authors continue to assert that "implementing groups cannot easily return to a court for clarification of a policy" (pp. 65-66) although plaintiffs supported by organizations can and do return to court to protest evasion of implementation, and courts retain jurisdiction to facilitate such follow-up.

Aided by useful notions of consumption by choice and "automatic consumption," Chapter Four contains discussion of consumer and consumption characteristics as well as responses to beneficial and adverse decisions. The authors continue their unfortunate claim that, even with fewer criminals being brought to justice because of MIRANDA and other defendants' rights cases, the linkage between those rulings and an adverse effect on all "is too remote and speculative to justify putting the whole public into such cases' consumer population" (p. 95). If this is so, what can be a potential consumer? Even without becoming a right-wing reactionary, one can easily point out that someone attacked by a person released because of MAPP or MIRANDA is a "consumer" of the ruling. Chapter Five, on "Secondary Populations," deals with public officials, interest groups, media, and attentive and mass publics, an indication that this category is grossly overinclusive and thus an unacceptable "residual category."

The authors then present Chapters Six and Seven on "Judicial Implementation Theory" and "The Impact of Judicial Decisions as Public Policy." The former remains arranged around psychological theories (cognitive dissonance and legitimacy, with Mondak's experiments added but without acknowledgement of the important literature on procedural justice), utility theory, organization theories, and environmental theories. A page is added on principal-agent theory but, despite its relation to this theoretical development, the first edition's discussion (in Chapter One there) of how infrequently cases are appealed is deleted.

A somewhat restructured Chapter Seven deals with Supreme Court clashes with the other branches, but only one paragraph discusses statutory interpretation, and with other courts -- state supreme and trial courts and lower federal courts, but with only one paragraph on the U.S. courts of appeals and no citation to Howard. It also contains a new box on "Does Public Opinion Inform the Supreme Court?" and, replacing a summary of impact in four policy areas, new sections on judicial mobilization of political action and on courts and social change.

Even-handedly discussing Rosenberg and his critics, the authors deal with reforms requiring implementation, including schoolhouse religion (not part of THE HOLLOW HOPE), and consumer choice reforms, which they briefly place within Rosenberg's constraints, and where they examine the impact of rulings on abortion, sexually-oriented material, and advertising by professionals. While THE HOLLOW HOPE "portrays a Supreme Court that is almost powerless," the authors' "review of six major reforms initiated by the Supreme Court (plus desegregation) . . . shows the Court as an independent generator of notable policy change." (p. 215)

There are two new appendices presenting Supreme Court abortion rulings and sample lower court abortion rulings, but they are not used by the authors and thus simply occupy valuable pages easily put to better use.

II.

A. What might we expect from a new edition of a book so long after the first? When books are revised in a three-or-four-year cycle, some editions are likely to be little more than updates, but more can be expected when over a decade has transpired. This is particularly so here, given the burgeoning of public policy analysis, with its considerable attention to implementation and impact of policy developed by other institutions. From this volume one would not know of the development of public policy work or that anything had been written in POLICY STUDIES JOURNAL and POLICY STUDIES REVIEW, despite the authors' statements that they will include not only "updated decisions and policies" but also "new research [and] hypotheses" (p. xii) and will "borrow theories from the political science subfield of public policy that is focused in part on the implementation and impact of policies made by legislative bodies and executive agencies" (pp. xii-xiii).

Except for a few citations (e.g., McCombs, Iyengar and Kinder), the content stays almost entirely within the confines of public law literature. The only policy-analytic authors noted are Mazmanian and Sabatier --only once, in language from the first edition-- and there remains, for example, no mention of nor citation to even an older work like Nakamura and Smallwood despite its drawing on public law literature in its implementation analysis. Public law scholars who complain about being isolated certainly isolate themselves when they keep the readers penned off from, and fail to acknowledge, the remainder of the discipline. As someone who believes that public law scholars have much to learn from our subfield "neighbors," I find this failure a serious deficiency, and a near-fatal one where policy analysis scholars have also attempted to sort out "factors affecting implementation and impact" so that failure to draw on that work holds back development of theory.

B. Despite the potential conflict between writing supplementary volumes for the "undergraduate trade" and writing works of theoretical sophistication, one can wish the authors provided far more theoretical contribution; indeed, after almost 15 years, one can demand it. To provide tighter theory is important not only because graduate students need a good platform from which to launch their research, but also because undergraduates are likely to believe that the published work we assign represents the level of analysis for which they should aim.

At a minimum, our students should see work that meets basic methodological requirements. The four population categories may facilitate arranging literature but have always violated the essential rules for typologies -- that categories be mutually exclusive and that the residual category be as small as possible (for the latter, see above). The undergraduate readers of the first edition who did not know these rules from having studied methodology but who nonetheless regularly found the book's framework loose and unsatisfying will be no happier with the new edition.

In allocating topics and arranging the literature, the authors treat the populations as fixed categories, although whether a population is "implementing" or "interpreting" or both depends on the situation, and a particular actor like an attorney general can move from one to another. The authors' difficulties with categories are evident in carrying forward the error that there is no implementing population for NEW YORK TIMES v. SULLIVAN (p. 20). Thus they ignore lawyers --not merely interpreters but implementers-- who advise media about possible libel suits and have the power to demand changes in copy or programming. (A recent example is the combined interpreting and implementing roles employment lawyers are playing in the aftermath of ELLERTH in explaining the decision to company officers and directly training employees.)

More effort was also necessary to incorporate theoretical advances, such as the already-noted work on procedural justice. And it won't wash to say once more what was said years ago about "Activation of Interest Groups" when the "growth industry" in the public law literature on interest groups has intervened. Likewise, has nothing happened with respect to utility theory since 1976, when Rodgers and Bullock wrote? If so, shouldn't we at least be told about the relative lack of recent research? Nor do the authors extend themselves to develop generalizations. It is not sufficient to say, for example, with respect to the Supreme Court's statutory interpretation decisions, "No scholar has advanced or tested a broad hypothesis bearing on the impact of statutory interpretation, so it is difficult to draw detailed conclusions here." (p. 198) The authors should have attempted a broad-gauge proposition that might be useful to readers attempting to apply their work.

In JUDICIAL POLITICS, we have a volume which serves a useful function in presenting a certain range of literature but, with respect to great amount we still have to learn about the impact and implementation of judicial decisions, provides little assistance. Showing minimal forward movement from the previous edition, this boat, while not sinking, seems dead in the water.

Copyright 1995