LIST OF PANELS

Three decades ago, researchers started pointing out a shift in power towards the courts as a worldwide phenomenon (Hirschl 2008, Tate and Vallinder 1998). Since then, research on courts and their role in politics and policy-making has proliferated around the globe. Concepts to describe the phenomenon of judicialization have diversified and research that started out on the national level now includes supra- and international courts and infra-national judicial bodies. Despite several decades of research, empirical research on the judicialization of public policy has remained sketchy and there are several challenges to address on the theoretical and empirical level:

1. The vagueness of the concept of judicialization makes it a catch all term used on any occasion where courts render policy relevant decisions. As Barnes and Burke (2020) suggest, we should think about judicialization as a just one of form of authority: « To say anything meaningful about how and why growing judicialization matters, we must compare the social and political consequences of the alternative forms of authority—expert, legislative, executive—that judicialized structures displace (or, more likely, are layered on top)”. (2020: 15.11). This is particularly promising avenue, as it allows to connect research on judicialization with long-standing debates about administrative, regulatory and policy styles in (e.g., Richardson 1982, Bayerlein and Knill 2019, Howlett and Tosun 2019) and more generally with policy process theories.
2. While there is a consensus that judicialization is not a uniform phenomenon across policy fields and issues, little research comparatively investigates why in some policy fields we observe more court involvement than in others.
3. There is also hardly any research that inquires why policy issues or fields become less judicialized and less adversarial, under what circumstances processes of judicialization might even get reversed. This has to do with the fact that a great part of empirical studies are focusing on important constitutional decisions by apex courts and in the European context on supranational courts, such as the ECJ and the EUCtHR.
4. Empirical research on the judicialization of public policy on the national or subnational level has remained sketchy and does only rarely allow to see variation and investigate what variables of the policy-making process render decision-making and implementation less or more litigious. There is an important lack in theorizing and empirically researching the relationship between different branches of government and the role of courts in policy-making and the concept of judicialization is not sufficiently discussed with respect to other  models of power relations between branches because of the exclusive focus on shifting power towards courts.

In sum, the panel intends to discuss the following questions: How can our policy theories better account for different forms of authority or different modes of power relations between branches to advance the discussion of judicialized policy making? How can we better explain variation across policy sectors and over time in terms of the judicialization of public policy?

While judicialization has been prevailing in many policy-making contexts around the globe, this panel suggests revising the often-used assumption about judicialization being a one-way process of shifting power to the courts with little variation across policy sectors, time and consequences. We therefore invite papers that address the following theoretical and empirical questions: 

A. We welcome papers that discuss the judicialization of public policy from a theoretical perspective by mobilizing theories and concepts of the policy process and theories about policy, regulatory and administrative style in order to better understand variation in litigation practice and adversarial legalism (Kagan 2001, or Eurolegalism, see  Bignami and Kelemen 2017) comparatively across policy fields and time.

B. We are looking for empirical research on the judicialization of public policy in all types of policy sectors on the national and subnational level in form of case studies or comparative across countries or policy sectors, that address among others the following questions:

• What are the factors in the policy-making process that might explain the variation in judicialization on the national or sub-national level across policy fields? Is there such a thing as de-judicilization in public policy? Have processes of economic integration – EU, eurolegalism – actually led to a convergence in policy styles as argued by some, and if so to what extent?
• What are the consequences of judicialization on policy-making processes and policy outcomes in terms of power relations between branches but also stakeholders? Under what conditions can we observe feedback loops leading to more legal mobilization or backlash?
• Are effects of judicialization more positive during certain stages of the policy-making process – agenda setting and definition (initiate policy change) and more detrimental during later stages, in implementation for example, because of rendering process less efficient and rising costs (e.g., Barnes and Burke 2020)?