Judicializing Public Interests: Administrative Performance Under the Shadow of Judicial Review

In: American review of public administration: ARPA, Volume 54, Issue 7, p. 630-647

Abstract

Do active judicial reviews bring about better administrative performance? Most scholars argue that active judicial review creates animosity between the judiciary and administration, leading to bad administrative performance. Others advocate that the relationship is not so much hostile as it is constructive. However, the actual impact of and mechanisms enabling such a constructive relationship remain unclear. Employing an analysis of Public Interest Litigation against the Administration ( PILA) in environmental protection cases in China, we present a theory of "bargaining in the shadow of judicial review." The threat of imminent judicial review forces the administration to negotiate with the prosecutor and enhance its performance in exchange for dropping charges. Additionally, the effect of PILA is stronger in regions with more public environmental concern and weaker in regions where the higher-level public administration pays greater attention to environmental protection. Furthermore, we identify the impact of PILA on local governments' enforcement efforts and its legitimacy. The present study sheds new light on the long-standing debate on managerialism versus legalism.