Reason for Hope? The Spotted Owl Injunctions and Policy Change

Authors

  • Brendon Swedlow

    Corresponding author
    1. Northern Illinois University
      Brendon Swedlow is assistant professor of political science at Northern Illinois University and can be reached at bswedlow@niu.edu.
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  • Particular thanks to Paul Chen, Art Ward, Steve Wasby, and four anonymous reviewers for their extensive helpful comments. Many thanks, too, to Jeb Barnes, Bill Haltom, Laura Hatcher, Michael McCann, Chandra Hunter Swedlow, and participants in the Western Political Science Association and Law and Society Association annual meetings for their helpful suggestions, and to Teri Bengston, Mariana Cotromanes, and Halima Khan for their excellent research and editorial assistance. The underlying research was directed by Robert A. Kagan, Martin Shapiro, and Laura Stoker; approved by the Committee for the Protection of Human Subjects at the University of California, Berkeley; and supported by Earhart and Bradley Foundation fellowships; the Survey Research Center and Center for the Study of Law and Society at the University of California, Berkeley; and the Center for Environmental Solutions in the Nicholas School for the Environment and Earth Sciences at Duke University.

Brendon Swedlow is assistant professor of political science at Northern Illinois University and can be reached at bswedlow@niu.edu.

Abstract

Under what conditions can US courts contribute to policy change? This article shows how a case study can be used to test and develop a theory of judicial policy making answering this question. In The Hollow Hope (1991, 2008), Gerald Rosenberg theorizes that judicial policy making is constrained by the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's inability to implement its rulings. Ninth Circuit injunctions protecting the Northern Spotted Owl and orders to manage ecosystems in the Pacific Northwest invalidate and help reformulate Rosenberg's theory. These rulings show how judicial interpretations of statutes, regulations, precedent, and facts allow judicial policy making if these interpretations are accepted by the legal and political culture when Congress and the presidency are too divided to override them. The owl rulings also show how statutes facilitate the implementation of judicial rulings, a point not developed by Rosenberg, while additionally providing further evidence for Rosenberg's specification of conditions allowing implementation.

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