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

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.

Judicial Self Government and the Sui Generis Case of the European Court of Human Rights

In this article we explore the operation of judicial self-government (JSG) at the European Court of Human Rights (ECtHR), paying particular attention to how JSG operates in the judicial selection procedures and in the administration of the court. We find that JSG at Strasbourg is highly variable with relatively weak levels of judicial influence on the selection of judges contrasted with a high degree of control over court administration. We go on to analyze how the dual nature of JSG at the ECtHR (strong post-election and weaker pre-election) promotes or hinders a range of values, namely, independence, accountability, transparency and legitimacy. We argue that the JSG practices at the ECtHR prioritize judicial independence at the expense of accountability. The picture with regard to transparency is mixed and while judicial decision making itself is fully transparent, wider JSG practices at Strasbourg are largely non-transparent. We note that legitimacy concerns were a key motivating factor in many of the key JSG reforms undertaken by the ECtHR in recent years and explore whether these have had the desired impact. We conclude by arguing that the differences in reach and form of JSG at the pre and post-election processes strike a careful balance in respecting the separation of powers and the democratic principle.

Some Aspects of Jean Gerson’s Legal Influence in Sixteenth Century England: The Issue of Epikeia

The present study focuses on one aspect of Jean Gerson’s (1363–1429) judicial influence in England: the development of the concept of equity or