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Article

Courts and Social Policy  

Jeb Barnes

How do courts affect social policy? Answering this question is deceptively complex. Part of the challenge stems from the sheer scope of contemporary judicial policymaking, particularly in the United States, where litigation reaches into nearly every nook and cranny of the American welfare state and casts a shadow on policy issues ranging from marriage equality to healthcare reform. Another obstacle is that scholars remain deeply divided on fundamental questions about the nature of judicial decisions and how their policy effects should be studied. These disagreements, in turn, have engendered three very different approaches to studying the role of courts in social policy that often talk past each other. The dominant approach views judicial decisions as prescriptive rules—legal commands from the bench—and asks: To what extent do judicial decisions change policy? This view implies that judicial decisions are “treatments” whose efficacy should be tested by measuring shifts in policy outcomes from the pre- to post-treatment period or across treatment and control groups. An alternative tradition envisages judicial decisions as a potential resource, which can be used by activists as leverage in building movements and pursuing agendas in multiple forums. Here, the core question is not whether court decisions produce abrupt policy shifts, but how activists use these decisions to challenge the status quo, mobilize interests, and generate pressure for policy change. A third approach sees legal precedent as a constitutive framework that shapes and constrains policymaking and its politics over time. The test for whether law matters under this approach centers on the degree to which judicial decisions influence the developmental trajectories of policy and politics, which includes consideration of paths not taken in the policymaking process. That is not to say that the literature is wholly discordant. Despite their significant conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like statues and regulations, is contested and subject to capture by sophisticated interests; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective political demands; judicial precedents, like other policies, generate policy feedback. Identifying similarities between judicial policymaking and its counterparts is a signature achievement in the study of courts and social policy, which has largely dispelled the “myth of rights” and simplistic notions that the law is somehow removed from politics. Yet it arguably has had an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it less interesting as a distinct topic for research. This article suggests the time has come for all of the various research traditions in the field to return to foundational questions about what makes judicial policymaking distinctive, and systematically study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process.

Article

The Extended Scope of Accountability in Public Administration  

Richard Mulgan

The accountability of governments to their citizens is usually framed within a relationship of principal and agent in which the government, as agent, is obliged to answer to the citizens as agents. It is also commonly located within a structure of representative democracy where political leaders are elected by, and answerable to, the voters. However, these two theoretical frames do not adequately capture the relations of government to their citizens or the parameters of government accountability. Governments increasingly operate through non-hierarchical networks that are not subject to the vertical accountability assumed in principal-agent theory. Instead, networks offer alternative, informal accountability mechanisms based on horizontal relationships. These are evident, for example, in the responsiveness of professionals to their clients and the mutual accountability of network members to one another. These mechanisms have a sufficient share in the characteristics normally associated with accountability, including the obligations to inform, discuss, and accept consequences, for them to count as mechanisms of accountability in the usual sense. Redefinition of accountability, for instance to exclude the requirement of answering to another person or body, while understandable, is not essential. Accountability mechanisms also function without the support of effective democratic elections. For instance, formal institutions of horizontal accountability, such as courts and anti-corruption agencies, can operate in non-democratic regimes and are better seen as conditions of representative democracy rather than as consequences. Partially democratic or authoritarian regimes also exhibit various forms of social accountability in which civil society organizations call governments directly to account without recourse to state-based agencies of accountability. Large authoritarian regimes can encourage limited accountability processes as a means of bringing public pressure to bear on recalcitrant cadres. To be effective, however, all such measures require at least some legally robust support from government institutions.

Article

The Changing Shapes of Latin American Welfare States  

Evelyne Huber and Zoila Ponce de León

Latin American welfare states have undergone major changes over the past half century. As of 1980, there were only a handful of countries (Argentina, Brazil, Chile, Costa Rica, and Uruguay) with social policy regimes that covered more than half of their population with some kind of safety net to insure adequate care during their old age and that provided adequate healthcare services. With few exceptions, access to social protection and to healthcare in these countries and others was based on formal employment and contributions from employees and employers. There were very few programs, and those few were poorly funded, for those without formal sector jobs and their dependents. The debt crisis and the ensuing neoliberal reforms then damaged the welfare state in all countries, including these leading nations. Deindustrialization, shrinking of the public sector, and cuts in public expenditures reduced both coverage and quality of transfers and services. Poverty and inequality rose, and the welfare state did little to ameliorate these trends. With the turn of the century, the economic and political situation changed significantly. The commodity boom eased fiscal pressures and made resources available for an increase in public social expenditure. Democracy was more consolidated in the region and civil society had recovered from repression. Left-wing parties began to win elections and take advantage of the fiscal room which allowed for the building of redistributive social programs. The most significant innovation has been expansion of coverage to people in the informal sector and to people with insufficient histories of contributions to social insurance schemes. The overwhelming majority of Latin Americans now have the right to some kind of cash assistance at some point in their lives and to healthcare provided by their governments. In many cases, there have also been real improvements in the generosity of cash assistance, particularly in the case of non-contributory pensions, and in the quality of healthcare services. However, the least progress has been made toward equity. With very few exceptions, new non-contributory programs were added to the traditional contributory ones; severe inequalities continue to exist in the quality of services provided through the new and the traditional programs.

Article

Governance Through Civil Society  

Jacob Torfing

In recent years, there has been a growing interest in the role of civil society in public governance, defined as the process of steering society and the economy through collective action and in accordance with some common objectives. Civil society holds valuable experiences, resources and ideas that may be mobilized in support of public governance processes. The heightened interest in civil society has stimulated scholarly debates about the conceptualization of civil society that tends to be defined as an institutional realm of private associations, voluntarism, and active citizens. The theoretical perception on the role of civil society vis-à-vis public governance seems to have moved from mainly considering the governance of civil society and governance in civil society to focusing on governance with civil society through various forms of collaborative network governance and co‑creation processes. In other words, civil society is no longer perceived merely as a target for public governance initiatives promoted by state agencies, nor is it solely praised for its capacity for self-governance. Civil society has been re-casted as a competent and resourceful partner in processes of co-governance in which public and private actors create a common ground for joint problemsolving. The new research on co-governance prompts analysis of the conditions for engaging civil society actors in public governance, the potential benefits and problems of governance based on interaction with civil society, and the need for meta-governance of cross-boundary collaboration. Civil society is often associated with local, place-bound groups and associations, but it is equally important to consider the prospects for global governance to involve the emerging global civil society. The interest in how civil society can play a role in and contribute to public governance has come to stay and prompts us to reflect on future research avenues, including the key question of how we can create platforms for cross-boundary collaboration between public and private for-profit and non-profit actors. As such, the re-casting of civil society as a partner in the co-governance of society also seems to transform the state from an authority standing above society to an opportunity structure that promotes cross-boundary collaboration and co-creation of public value outcomes.

Article

Consumer Policy and European Union Politics  

Hans-W. Micklitz

The rise of consumer policy is inextricably linked to the emergence of the consumer society after the Second World War. From the mid-1970s the EU became engaged in the issue. It used first and foremost legal means, directives, and regulations. The actors were no longer nation-states, governments, national parliaments, national courts, and national consumer organizations; they became the European Commission, the European Parliament, the Council of the European Union, the European Court of Justice, European organizations, research institutions, and consultancy firms, which interact in a multilevel economy and society.

Article

Marriage Equality Policy Diffusion  

Helma G. E. de Vries-Jordan

Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.

Article

Welfare Politics in Africa  

Jeremy Seekings

The emerging literature on the politics of social protection in Africa provides insights into the ways in which the unevenly changing character of representative democracy shapes processes of public policymaking in practice. Reforms are widely on the agenda, in part as a result of their advocacy by diverse international organizations and aid donors. But there are many obstacles between the policy agenda and policymaking (and implementation). In many countries, political elites hold conservative views on cash transfer programs. The institutionalization of regular and nominally contested elections has rarely resulted in significant pressures from below for pro-poor programmatic social policy reforms. In some countries, “democratic” politics continues to revolve around competition for patronage rather than programmatic reform. In others, voters themselves seem to prioritize other programs (especially agricultural subsidies) ahead of social protection. Nonetheless, a growing number of competitively elected governments have introduced reforms, as have some semi-democratic or authoritarian regimes. For both more and less democratic governments, regime legitimation through apparently more inclusive development seems to be a more powerful factor than voter pressure.