The Impact of Courts on Public Management: New Insights From the Legal Literature
| Author | Andrew Osorio,Rosemary O’Leary |
| DOI | 10.1177/0095399716682329 |
| Published date | 01 May 2017 |
| Date | 01 May 2017 |
| Subject Matter | Mini-Symposium on Law in the PA Curriculum |
research-article2016
Mini-Symposium on Law in the PA Curriculum
Administration & Society
2017, Vol. 49(5) 658 –678
The Impact of Courts on
© The Author(s) 2016
DOI: 10.1177/0095399716682329
Public Management: New
journals.sagepub.com/home/aas
Insights From the Legal
Literature
Andrew Osorio1 and Rosemary O’Leary1
Abstract
This article challenges some of the accepted wisdom about the relationship
between courts and public institutions. The authors raise a reasonable
doubt concerning whether judges as a whole are refusing to defer
to administrator’s expertise and have lost their “cloak of neutrality.”
Moreover, there is evidence to conclude that judges, as a whole, are shying
away from the detailed “command-and-control” approaches of the past
where courts determined remedial norms, formulated comprehensive and
inflexible decrees, and then occupied a substantial directive role in their
implementation. At the same time, the authors find continued salience in
O’Leary and Straussman’s concern regarding untested conclusions made
largely in absence of empirical evidence concerning the impact of courts on
public management. Implications for the education of public administration
scholars and practitioners are offered.
Keywords
administrative law, command and control, courts
Introduction
Court decisions are part of the water in which public administrators swim.
They both enable and constrain administrators’ actions. Although Judge
1University of Kansas, Lawrence, KS, USA
Corresponding Author:
Andrew Osorio, School of Public Affairs, University of Kansas, 4060 Wescoe Hall, Lawrence,
KS 66045, USA.
Email: andrewosorio@gmail.com
Osorio and O’Leary
659
Bazelon predicted in 1971 that there would be “a long and fruitful collabora-
tion of administrative agencies and reviewing courts” (Environmental
Defense Fund v. Ruckelshaus, 439 F. 2d 584), much of the literature has
found that relationship to be one of misunderstanding, distrust, and confu-
sion. In a 1993 essay, O’Leary and Straussman offered a snapshot of that
sometimes tumultuous relationship in 20 propositions gleaned from the lit-
erature about the impact of courts on public management (see Box 1). The
purpose of this article is to examine the major changes in the literature since
1993, as well as to suggest a new proposition and ideas for future research not
considered by O’Leary and Straussman.
Box 1.
The Impact of Courts on Public Management (O’Leary & Straussman, 1993)
Legitimacy of Judicial Intervention
1. Judges have been aggressive and active in their oversight of administrative
agencies.
2. Judges may be invested in the outcome of litigation involving public
institutions and, as a result, lose their “cloak of neutrality.”
3. Judicial activity can result in “wrong” or “bad” policy.
4. Judicial interaction with administrative agencies can jeopardize
representative democracy.
Capacity and Competence
5. Judges must often rely on other courts and other organizations to
supervise the implementation of a court decision.
6. Judicial decisions concerning public agencies often include detailed judicial
supervision of organizations (including ongoing, affirmative decrees) with
frequent judicial interaction with agency staff.
7. There are often unintended consequences, unanticipated questions, and
unforeseen problems in court decisions involving public agencies.
8. Judges often deal with subject matter outside their areas of expertise.
The Public Management Agenda
9. A court order can dictate the issues that must be considered by public
agencies.
10. The filing of a lawsuit can confirm and strengthen government policy.
11. Court orders can disrupt processes within scientific organizations.
Litigation and the Authority of Public Managers
12. A negative judicial decision can be used by an agency to strengthen its
position.
13. Judicial activity can lead to reduction in the power and authority of
administrators.
14. Judges often refuse to defer to administrators’ expertise.
(continued)
660
Administration & Society 49(5)
Box 1. (continued)
Management of Resources: Budgets and People
15. There are anticipated and unanticipated costs of implementing a court
decision.
16. Special legislative appropriations are sometimes needed to provide the
funds necessary to implement a court decision.
17. Funds often must be taken from other programs and channeled into the
program that is the subject of a court decision.
18. Court decisions may yield a transfer of budgetary power from an
administrator to a judge. When this occurs, the budgetary discretion of
administrators is decreased.
19. Court decisions can frustrate budgetary retrenchment and can encourage
budgetary games.
20. Court orders can affect staff morale.
Before proceeding with our review of the literature, however, a few cave-
ats are in order. First, after reviewing both law journals and the social science
literature since 1993, we were greatly surprised at the paucity of new research
on this subject among the journals of public administration. We found that
few studies addressed, directly or indirectly, O’Leary and Straussman’s find-
ings, and therefore largely rely on legal journals for this article. Second,
within the legal literature, only four of O’Leary and Straussman’s original
themes evinced significant new research and fresh thought, and, as such, we
confine our inquiry to this quartet:
•• Judges have been aggressive and active in their oversight of adminis-
trative agencies.
•• Judges often refuse to defer to administrators’ expertise.
•• Judges may become invested in the outcome of litigation involving
public institutions and, as a result, lose their “cloak of neutrality.”
•• Judicial decisions concerning public agencies often include detailed
judicial supervision of organizations (including ongoing, affirmative
decrees), with frequent judicial interaction with agency staff.
Third, because this discussion is limited to works from the legal discipline,
some ideas will be overrepresented whereas others are largely neglected. In
particular, the vast majority of the law review articles surveyed herein focused
on doctrinal issues pertaining to the appropriateness of judicial intervention,
whereas, for instance, the impact of court action on agency budgets and staff
was virtually ignored. Hence, what follows is not a definitive summation of the
recent scholarship on the subject of courts and public management. In other
words, rather than laying claim to complete coverage, we offer a representative
Osorio and O’Leary
661
slice of the discourse in legal journals concerning courts and public manage-
ment over the past two decades. (See the appendix for additional information
about the limits of this research with a focus on the differences between legal
and social science scholarship.) With the preceding limitations in mind, the fol-
lowing is a summary and critical analysis of legal scholarship over the last 20
years on the impact of courts on public management.
Revisiting The Impact of Courts on Public
Management Through a Review of Recent Legal
Literature
Judges have been aggressive and active in their oversight of administrative
agencies, and judges often refuse to defer to administrators’ expertise.
Arguably, the most significant substantive change since O’Leary and
Straussman (1993) offered their snapshot into the scholarship on courts and
public management concerns the first of their propositions: Judges have been
aggressive and active in their oversight of administrative agencies. As posited
by one observer, if
any one area of administrative law could represent the changing assumptions
about the proper role of courts in the administrative process, it would be the
doctrines relating to the intensity with which the judiciary reviews administrative
decisions. (Schiller, 2000, p. 1417)
Specifically, a number of scholars relying on recent Supreme Court opinions
have generally concluded that the federal judiciary has become more con-
strained in overseeing agencies since the heyday of judicial involvement with
the administrative state in the 1960s and 1970s as described by authors such
as Werhan (1992) and Schiller (2000).
For example, recent law review articles have argued that the sum total of
modern Supreme Court jurisprudence in the area of administrative law has
(a) significantly restricted judicial discretion to invalidate agency action
(Keller, 2009), (b) drastically limited the ability of courts to mandate wide-
spread change within an agency (Jeffries & Rutherglen, 2007), (c) required
judicial deference to an agency’s interpretation of its own statutory jurisdic-
tion (Farber & O’Connell, 2014), (d) resulted in the virtual abandonment of
the nondelegation doctrine (Lemos, 2008), (e) largely freed an agency’s stat-
utory interpretation from the confines of stare decisis (Rana, 2012), and (f)
increased the difficulty for private parties to bring suit, thus limiting the
involvement of the courts (Farber & O’Connell, 2014).
662
Administration & Society 49(5)
Focusing on decisions made in the U.S. Courts of Appeal, Vermeule
(2009) argues that post-9/11 judicial review has been especially deferential
with respect to agency actions that pertain to national security. Likewise, in
the area of environmental law, Czarnezki (2008) observes that federal appel-
late courts, cognizant of their limited technical capacity,...
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