Vol. 15 No.3 (March 2005), pp.173-175

JUDICIAL REVIEW AND BUREAUCRATIC IMPACT: INTERNATIONAL AND INTERDISCIPLINARY PERSPECTIVES, edited by Marc Hertogh and Simon Halliday.  Cambridge: Cambridge University Press, 2004. 328pp. Paperback.  $39.99 / £22.99.  ISBN: 0521547865.  Hardback. $90.00 / £50.00. ISBN: 0521839181.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrhh@langate.gsu.edu .

Marc Hertogh and Simon Halliday present an intriguing edited volume of what American scholars would refer to as court impact studies. The volume should be of interest to scholars who research and teach in the area of bureaucratic and judicial politics and will be of some use and interest in graduate courses in those areas. The articles in the volume derive from a similarly entitled workshop that occurred two years before publication of this volume bringing together scholars in law and social science from the United States, Great Britain, Australia, Canada, and Israel. The authors have read the other articles and have incorporated and responded to many of the ideas presented by them. The result is a very cohesive and organized edited volume.

The book is divided into three parts. The first section analyzes the concept of judicial review (impact) of bureaucracies and addresses issues regarding appropriate methodological approaches and research techniques for particular impact questions.  The second section presents case studies of judicial impact from the United Kingdom, Canada, Australia, Israel, and the United States, while the concluding part offers directions for future analyses and research in the area of court impact on bureaucratic behavior, including the editors’ suggestions for a future integrated research agenda.

The collection begins with an essay by Peter Cane who discusses the conceptual and methodological difficulties associated with bureaucratic impact research. Cane’s chapter tackles some difficult empirical and normative questions, such as the meaning of the terms, review and impact, and why we should care. Cane argues that one cannot understand this line of inquiry without a contexualized understanding of the assumptions that underlie various judicial impact models within individual nations. The author suggests that, given the multitude of questions, contexts and definitions, it might be impossible for researchers to gather sufficient data for comprehensive empirical study.

In the second chapter, Maurice Sunkin considers some of these conceptual issues, and he attempts to determine what is meant by impact research. That is, do we look at the impact of litigation, of judgments, or of some normative values and principles?  Then, what observations are relevant to assessing whether and to what extent impact has occurred—e.g, changes in organizational structure, in decision-making, in management processes? Sunkin then examines the various methodological [*174] approaches that have been used by scholars engaging in such research.

Empirical political scientists with an interest in these issues might find the first two chapters intriguing and thought provoking, but not necessarily helpful to their own research. Scholars generally prefer a particular methodological approach and have decided what kinds of data are most relevant to the problem. It is the third chapter, written by Bradley Canon, that American political scientists likely will find most interesting. Canon presents a useful summary of many, but not all, of the important impact studies and provides references to other more comprehensive ones. Consequently it is a useful starting point for graduate students interested in the major research in this field. The chapter also offers a template for American political scientists who study courts and impact, demonstrating how the process moves from bureaucratic interpretation, to response, and finally to implementation.

The second part of the volume consists of case studies from five countries – the United Kingdom, Canada, Australia, Israel, and the United States – focusing on judicial rulings and subsequent bureaucratic responses. All are interesting and represent a range of the different types of judicial impact studies, but the reader might have a particular country of interest, and one can read the first and last parts (and selectively between) of the edited collection, without diminishing the volume’s value.

Genevra Richardson, for example, in Chapter Four surveys existing impact literature in the United Kingdom and presents the author’s own case study of the decision making of the Mental Health Review Tribunal, which reviews the legality of patients’ detention for mental disorder assessment. Richardson argues that judicial determinations compete with other value systems for influence, thus representing a form of judicial impact.

Lorne Sossin, in Chapter Five, continues the case study approach, assessing three sets of observations, one involving social welfare legislation, another concerning immigration, and the third on obscenity standards, to examine the impact of what the author defines as “soft law.” Soft law consists of rules, policies and guidelines that are the means by which court decisions and standards are communicated to street level decision makers, and in turn become a channel of communication from personnel and agencies back to the courts.

In the third study, Robin Creyke and John McMillan survey those affected by judicial decisions to gage impact on subsequent bureaucratic responsiveness over a ten year period in Australia. This innovative and instructive study finds that, in a majority of cases, court rulings helped individual litigants in their disputes with an agency and several decisions did change overall administrative behavior in later cases.

The fourth and fifth case studies investigate court impact on bureaucratic behavior in Israel and the United States. Yoav Dotan’s fascinating study examines the Israeli Supreme Court’s responses to the use of torture against suspected terror suspects. The Court moved in phases—first it avoided the issue; then it delivered after-the-fact rulings with little or no impact; and finally the court issued a clear decision [*175] banning such torture, a ruling that was followed by immediate compliance. In the last country analysis, Malcolm Feeley examines judges in three states (Arkansas, Texas and California), who, with the aid of a special master, became successful administrators of prison reform.

All the studies in this section are worthwhile; however, I think it would have been useful if at least one author had used a large n, multivariate analysis as a complement to those presented. Multivariate models have provided significant evidentiary support to several of the case studies in these chapters. For example, Richardson’s conclusions are supported by several scholarly works comparing congressional versus executive influence in the United States that have incorporated a court component as control measure, showing clear (if limited) judicial influence on bureaucratic behavior. Dotan’s analysis is supported by studies demonstrating that greater clarity in Supreme Court opinions enhances bureaucratic compliance.

The final section of the book contains two essays, one by Martin Shapiro, and the other by the editors.  Shapiro considers the rise of the European Union and predicts that administrative law in the EU will likely develop to resemble the American system, with more litigated, as opposed to negotiated compromise outcomes, and with judicial solutions replacing decisions premised on bureaucratic expertise. In their summation chapter, editors Hertogh and Halliday, contend that future judicial impact literature will have to take into account the ideas and theories raised throughout book and recommend the use of integrated methodological and comparative models.

Overall the book is a worthwhile addition to the judicial impact literature. It would have been a nice addition to have included one large-scale systematic study, but this does not detract from the overall value of the collection. In general, the essays fall short of the editors’ call for integration of these various approaches. I say this because significant and important work has been done that does not apply integrative approaches, nor does one have to adopt an integrative approach to do significant scholarly work in the future. The field is sufficiently vast to accommodate investigation of judicial impact of all sorts. Nonetheless, scholars who study in this area will find the volume a worthwhile addition to their libraries, even if the book falls a bit short of the editors’ claim.

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© Copyright 2005 by the author, Robert M. Howard.