Courts as Causes of Dramatic Policy Change

Abstract

Can courts cause dramatic policy change? And if courts can, are there institutional features of courts and/or conditions under which they operate that make them particularly able and likely to change policy dramatically? Public law scholars would generally answer “no” to the first question, and consequently see no reason to try to answer the second, while public policy scholars studying so-called “punctuated equilibria” in policy change have answered “yes” to the first question in two studies that they have done, but have barely begun to answer the second, and, with respect to Ninth Circuit injunctions to protect the Northern Spotted Owl and orders to manage ecosystems in the Pacific Northwest, have mis-specified why a “punctuated equilibrium” occurred where this article will argue courts played a significant role due to institutional features and operating conditions that are common to courts.

Keywords: Courts, Public Policy, Policy, Policy Change, Judges, Punctuated Equilibria, Ninth Circuit, Federal Courts, Pacific Northwest, Judicial Policy Making, Spotted Owl

JEL Classification: A13, D23, D59, D63, D71, D73, D74, D78, D81, E65, H41, H82, K23, K32, K41, K42, L50, L73, M14, N50