Reason for Hope? The Spotted Owl Injunctions and Policy Change

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.

Three Cultural Boundaries of Science, Institutions, and Policy: A Cultural Theory of Coproduction, Boundary‐Work, and Change

“…But these causal processes were not the only important ones. Also important were the independent power of courts in the U.S. political system under particular conditions that obtained here (Swedlow, 2009(Swedlow, , 2011b and some common (as well as unusual) causes for so-called punctuated equilibria in policy change (Cashore & Howlett, 2006, 2007. The evidence developed here has also been used to test, challenge, and revise theories of judicial policy making (Swedlow, 2009) and theories of sudden, big policy change (Swedlow, 2011b).…”

“…The coproduction of science and social order is a significant driver of policy change. Indeed, I have previously emphasized CT's ability to predict and explain the constructs of nature and policy prescriptions associated with managing forests and wildlife in the Pacific Northwest, as well as how the "cultural surprise" of finding ecosystems (that included northern spotted owls) in old-growth forests thought to be "biological deserts" contributed to institutional as well as policy change (Swedlow, 2002a(Swedlow, , 2003(Swedlow, , 2009(Swedlow, , 2011b(Swedlow, , 2012.…”

“…To conclude, my theory-illustrating evidence is taken from a case study I conducted, the reporting of which is distributed across several sources (Swedlow, 2002a(Swedlow, , 2003(Swedlow, , 2007(Swedlow, , 2009(Swedlow, , 2011b(Swedlow, , 2012. As a result, my analysis in this article does not attempt to account for all causes of the policy change described.…”

“…SCLDF's litigation campaign was initially frustrated in Judge Helen Frye's courtroom in their suits against the Bureau of Land Management (BLM), while finding unexpected success in Judge Thomas Zilly's in their suits against the Fish and Wildlife Service (FWS). But SCLDF achieved its greatest success in Judge William Dwyer's courtroom in their suits against the FS (Swedlow, 2003(Swedlow, , 2009.…”

“…1 To maintain consistency, aspects of the description of theory, concepts, methods, evidence, and directions for further research are taken from prior work, including Swedlow, 2002aSwedlow, , 2002bSwedlow, , 2003Swedlow, , 2007Swedlow, , 2009Swedlow, , 2011bSwedlow, , 2012. 2 These characterizations of appropriate decision-making authority are adapted from Lotte Jensen (1999).…”