Judicialization and Its Effects: Experiments as a Way Forward

Abstract

Law and courts play a larger role in American policymaking than in similar countries-and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied-and important-effects of judicialized policymaking.

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

“…Survey experiments, by contrast, tend to rely on relatively sparse hypotheticals but offer a means to randomly assign the choice of remedy related to the same injury, which provides analytic leverage over assessing the impact of remedy choice on attitudes. The point is not that one approach is “better.” Rather, qualitative and experimental methods can be complementary, and part of a mixed‐method law and society research agenda committed to careful description and causal inference (see Hevron, 2018).…”

“…The point is not that one approach is "better." Rather, qualitative and experimental methods can be complementary, and part of a mixed-method law and society research agenda committed to careful description and causal inference (see Hevron, 2018).…”

Untangling the Concept of Adversarial Legalism

“…Kagan's framework seems useful in this area for the simple reason that it provides a language for comparison. The idea that studying judicialization would benefit from comparison may seem obvious, but it is often glossed over in research on the politics of rights, courts, and litigation (Barnes & Burke 2015, Burke & Barnes 2009, Hevron 2018). 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 of ).…”

“…question. Assessing whether judicialization is prone to certain risks requires us to compare the effects of judicialized and nonjudicialized policies (Barnes & Burke 2015, Hevron 2018). This comparison is deeply problematic because judicialization takes so many forms and reaches into so many corners of modern administrative states.…”

“…We can employ the standard tool kit of comparative institutional analysis to answer this question. If our goal is to make strong causal claims, researchers can seek cases with sharp discontinuities or where the underlying selection mechanism-the historical processes that channel an issue into adversarial legalism versus other forums-creates natural experiments (see Dunning 2012, Hevron 2018. Using these strategies, we can argue that our cases provide a plausible basis for causal inference, even if they fall far short of the ideal of a randomized experiment in a laboratory setting (Barnes & Hevron 2018).…”