The impact of judicial decisions on bureaucracy is poorly understood. Some claim that court judgments have little or no effect. In contrast, others worry that judges will usurp the policymaking role of the political branches and override the expertise and experience of civil servants. As this thoughtful and wide-ranging collection of papers demonstrates, both claims are exaggerated.

“Judicial review” is not a uniform activity, especially in a comparative context. The role of courts depends on other features of the constitutional and statutory structure and on the nature of the public programs and policies subject to review. For American scholars who study the relationship between courts and bureaucracies, the chief interest of the book will be the comparative chapters that provide insights into the situation in several other industrialized countries, mostly in the British Commonwealth (the United Kingdom, Canada, and Australia, plus Israel).

In the United States, the concept of judicial review is often reserved for federal court review of statutes, regulations, and other agency actions for conformity with the U.S. Constitution. That is not how the term is used in this volume. Rather, it refers to the whole range of judicial oversight of bureaucratic behavior for conformity with the law. It covers both constitutional and nonconstitutional review and ranges from challenges to individual bureaucratic actions to claims that broad policies expressed in rules and regulations are legally defective. The volume, however, concentrates on judicial review of organizations whose programs touch a large number of people, such as immigration authorities, prisons, and welfare programs for the poor. The emphasis is not on the substance of court decisions but on the way bureaucracies respond to losses in court, both with respect to the individual case in question and in terms of the overall program.

The conceptual chapters by Peter Cane, Maurice Sunkin, and Bradley C. Canon clarify the alternative meanings of judicial review and canvass ways to study its impact. Cane makes an important distinction between judicial review under the English parliamentary system with no written constitution and under the U.S. separation-of-powers Constitution. However, he overemphasizes the role of independent regulatory agencies in the American context. Judicial review in the United States is not, at present, “overwhelmingly preoccupied with controlling the activities of independent regulatory agencies” (p. 20). Rather, many of the most important recent cases have concerned agencies such as the Environmental Protection Agency or the Occupational Safety and Health Administration that are part of the cabinet structure of government under the president. Nevertheless, Cane does draw an important contrast between the willingness of U.S. courts to review agency interpretation of statutes and the focus of English judges on protecting the rights and interests of individuals. In a parliamentary system, if a regulation does not conform to a law, the law can easily be changed to conform to the regulation. Thus, the UK courts are not much concerned with statutory interpretation. Judicial review in the United States also seeks to protect individual rights, as Malcolm Feeley's chapter on several prison-reform cases makes clear, but Cane's observation about the relative importance of statutory interpretation is surely correct. Australia is a hybrid, a country with a written constitution and a Westminster political system. However, judicial review there is mostly about the redress of individual grievances, suggesting that it is the parliamentary structure, not the unwritten constitution, that is the key. Martin Shapiro's chapter contrasting the European Union and the United States supports this hunch. Shapiro claims that the EU, with its complex constitutional structure, will be pushed by the European Court of Justice and public opinion toward a more participatory and transparent form of rulemaking that approaches the United States model.

The major differences in what the courts do when they review bureaucratic actions obviously have implications for analyses of the impact of judicial review. Cane is ultimately rather pessimistic that impact studies can be done successfully because of the role of noninstrumental factors. Sunkin is more optimistic, perhaps because he has actually attempted to measure impact in a study of social security appeals in the UK. He shows both that bureaucracies do sometimes reform in light of court judgments and that these actions can be studied systematically. Canon reviews research on the bureaucratic implementation of court judgments in the United States with a focus on “indifferent or hostile agencies” (p. 81). He shows how agency officials can resist and undermine the impact of court decisions if they are incompatible with their own views.

Subsequent chapters summarize case studies that demonstrate that agencies do respond to court judgments but that the responses are diverse and context specific. Sometimes an agency head actually welcomes an adverse judgment because it may accord with his or her view of the law or may give the agency added ammunition to seek additional funding—for example, to reduce overcrowding in prisons or hire additional professional staff. Feeley's review of aggressive efforts by U.S. federal judges to reform state prison systems provides some examples where agency personnel assisted the courts. In other cases, however, court impact is limited. For example, Geneva Richardson's study of the judicial review of the UK's Mental Health Review Tribunal (MHRT) shows that judicial review had only a patchy impact, in part because of the ongoing role of MHRT psychiatrists whose medical norms of decision making differed from those of judges. Lorne Sossin's study of Canada found a number of cases where judicial decisions helped increase the coherence and accountability of street-level bureaucrats. This result occurred when the decisions were communicated transparently and backed up by clear changes in the way superiors made decisions. Robin Creye and John McMillan show that in Australia, adverse decisions in individual cases do often benefit the plaintiff. Although many complained of time delays, in more than half the cases the applicant obtained a favorable outcome. This result, although encouraging, does not mean that the agency moved to rethink its overall practices. Almost half the agency personnel claimed to have done so, however, although the survey responses suggest that this may merely imply greater efforts to settle with recalcitrant applicants to avoid a court judgment. Finally, Yoav Dotan's study of the period in Israel during which individual cases of torture were subject to court approval is a particularly dramatic example of the problems that arise when courts get involved in the routine balancing of incommensurate values. The end result was a supreme court decision to ban torture altogether.

In short, the collection of essays in Judicial Review and Bureaucratic Impact is a fine overview of the state of research in the law and society tradition with a nod to political science and administrative law. As such, it draws mostly on models from sociology that focus on the operation of bureaucracies dispensing benefits or imposing costs on large numbers of people. The issue of whether such agencies can be induced to change through lawsuits brought by individual clients is in the background of the essays collected here, coming to the fore in Feeley's report on the U.S. courts' use of special masters to oversee structural change. In the absence of such draconian measures, which have their own problems in practice, the limits of judicial review are clearly on view in many of the chapters. Nevertheless, the hypothesis of no impact is clearly rejected, even if one's evaluation of the actual impacts in particular cases is mixed and context specific.