Date22 June 2020
AuthorMcnamara, Brian K.
  1. Introduction 2 II. The Policy Process and Kingdon's "Policy Streams" 5 A. The Policy Process Model 5 B. Kingdon's Policy Streams Model 9 III. Courts and the Policy Process 14 A. Courts and the Policy Process in the Policy Literature 14 B. Federal Courts, Admiralty, and Judicial Policymaking Discretion 16 IV. Policy Streams Application to Vessel Status 20 A. Stewart v. Dutra (2005) 21 B. Lozman v. Riviera Beach (2013) 22 C. Application of Policy Streams Model to Vessel Status 25 1. Problem stream 25 2. Policy stream 26 3. Politics stream 28 V. Analysis and Conclusion 30 I. INTRODUCTION

    Law and public policy are related fields of practice and scholarship. (3) Law schools train future practitioners not just to advocate in the courtroom, but also to advocate for changes in law and policy through legislative and regulatory means, and to use their legal training to "be active and influential in public life." (4) Schools of public policy train their graduates in the policymaking process, (5) and the field of public policy is seen by at least one scholar as an offshoot of, and subordinate to, the "formal rule of law." (6)

    Despite the strong overlap in practice and purpose for the fields of law and public policy, the academic literature for both fields pay little attention to the role of courts in policymaking. The policy literature treats courts almost as an afterthought, as passive institutional members of the policy process with relatively little to offer to the academic discussion. (7) The legal field, in turn, does not appear to look to the field of public policy for insight into the role of attorneys in the policy process or how to use courts strategically to achieve policy outputs that policy actors typically seek through legislative processes. (8) In short, the linkages between law and public policy are few and far between, and neither field's literature fully develops the role of courts in the policy process.

    This article seeks to build one such linkage between law and public policy by introducing Kingdon's "Policy Streams" model to legal scholars and practitioners and applying the model to the maritime policy of vessel status. Section II begins with an overview of the dominant policy process model of public policy. This policy process model, although subject to numerous critiques, remains the dominant "heuristic" in public policy for its utility both in organizing the field and in structuring scholarly research within the field. Section II continues by explaining Kingdon's "policy streams" model, discussing its historical context in the development of public policy theory, and placing the policy streams model within the agenda setting stage of the dominant policy process heuristic. (9)

    Next, Section III examines the role of courts as actors in the policy arena. It begins by reviewing the existing, but scant, literature on courts and the policy process. Section III continues with a discussion of federal courts and the policy process. The Section focuses on the characteristics of federal courts in general, and federal courts sitting in admiralty, that make them uniquely suitable for analysis through the lens of Kingdon's policy streams model. Federal admiralty courts, due to the unique position and authority provided to them by the U.S. Constitution, and due to the broad discretion of admiralty judges, provide policy actors with a unique forum into which actors can strategically bend their issues. (10)

    Section IV then demonstrates the utility of Kingdon's policy streams model for legal practitioners and legal scholars by applying the model to the maritime policy of "vessel status" as developed by the federal admiralty courts. This Part builds on existing literature by extending Lee's approach to admiralty case law. (11)

    Section V then analyzes the utility of the model for practitioners and scholars. This Part concludes that the policy streams model provides a utilitarian agenda setting framework for maritime policy subsystem practitioners. The federal admiralty courts play a unique role in our government. Admiralty courts, because of their inherent judicial role and unique charge and jurisdiction, offer maritime policy subsystem actors the opportunity not just to respond to policy windows when they open but to open policy windows themselves.

    Finally, the conclusion identifies areas of future inquiry to promote thoughtful reflection among legal practitioners, legal scholars, and policy scholars. For legal scholars, this article adds to the emerging literature on courts and the policy process. Understanding that court decisions are policy outputs, and by framing the courts within the policy literature, this article provides a fresh perspective for legal scholars who seek to advance social change through their research. The policy streams model is offered as an alternative view to the traditional treatment of courts as passive participants in the policy process. Currently, the literature is under-developed regarding courts and the policy process. Kingdon's policy streams model can inform continued development of the literature on judicial decision-making, the intersection of courts and political processes, and other subject areas in which law and policy intersect with theory and practice. Continued research and scholarship in the legal tradition and through a variety of social science methodologies can build a bridge of understanding between the law and policy literature. (12) This understanding can yield powerful insight for legal scholars and practitioners who seek to use the courts to achieve desired policy outcomes.


    1. The Policy Process Model

      The series of steps necessary to move from the perception of a public problem to resolution of that problem is often referred to as the "policy process." (13) Conceived most often as a series of linear steps, (14) the journey begins with a perception of a problem, and ends (if successful) with an evaluative statement that the problem is resolved. While the number of steps involved, and the names associated with those steps, varies widely, all the models include a series of activities including agenda setting, policy formulation, decision making, implementation, and evaluation. The initial condition is the recognition of a policy problem. It is important to state that not all "problems" are generally perceived as problems; nor are all problems worthy of government attention. Those that are deemed by policy makers as worthy begin to receive attention from formal actors in the policy process--elected officials, chief executives, and the courts. (15) If this occurs, the policy problem is said to be on the policy agenda. (16)

      Once an issue has made it on to the policy agenda, the next step is to define the problem more explicitly and search for possible solutions that fit the prevailing definition of the problem. In a conventional legislative setting, this step represents the work done by legislative committees through expert testimony, debate, and bill markup, and perhaps later through amendments during floor debate. The goal is to produce both a definition of the problem as well as a solution that will address the problem as defined. Assuming this process is successful, the next stage is a decision stage. In the American legislative system, the decision stage is broken into several decisions across multiple branches of government: each chamber of the legislature must vote on a version of the solution, then reconcile differences between those versions. If this process is successful, the chief executive must then also approve the legislature's reconciled version (subject to constitutional provisions for the veto and the provisions to override a veto). The courts can also exercise judicial review to declare a bill, or a portion of a bill, to be unconstitutional, which can also serve to alter policy outcomes. (17)

      Assuming a policy survives the decision-making process, it then moves on to the implementation stage. An oft-cited dictum in policy circles is that policy without implementation is meaningless. Implementation is most often within the purview of government bureaus and agencies and involves putting policy decisions into action. (18) Legal authorities are defined and clarified (either in concert with the legislature, the courts, or both) and policy processes are created and refined, and then carried out. Implementation continues as long as a policy carries legal force (i.e., until legal authority is rescinded by formal policy actors) and agencies are required to continue implementation. (19) Finally, the evaluation stage is where information about a policy's effects are collected, analyzed, and disseminated. Traditional evaluation efforts typically focus on a program's effects, and whether the program as implemented is solving the problem identified by formal policy makers. (20)

      While most policy scholars describe the process model as a strictly linear process, (21) it is rare that a policy proceeds through the stages in a linear fashion. A policy demand may linger for years in the agenda-setting stage, hampered by a lack of recognition or interest on the part of policy makers. Once a policy reaches the policy formulation stage, it possible that policy makers cannot agree on either the problem definition or solutions, (22) and either fail to pass (or fail to vote on) a proposed solution. Implementation may unveil missing legal authorities required for successful implementation, necessitating a process of policy redesign via a return to the policy formulation stage. Likewise, unintended (or negative) consequences uncovered in an evaluation process may spark a policy redesign effort, and the process repeats.

      The policy process model is a powerful heuristic (23) to understand the steps in conventional policy making, but it does have limitations. First, the focus of the heuristic is on the legislative...

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