Law and Public Policy

Anthony Michael Kreis1
kreis@uga.edu
University of Georgia

Robert K. Christensen
rc@uga.edu
University of Georgia


Law and public policy is a dynamic, interdisciplinary area of study that has broad appeal to scholars, policy-makers, and stakeholders. Scholarship in the subfield is critical to our general understanding of existing public policies and calls for future and reformed policies. While some of the subfield's utility and commonalities are obscured by diverging methodological approaches and topical foci, this review highlights some common fibers that run through the scholarship streams from public policy, public law, and doctrinal disciplines. We focus on several substantive policy areas to illustrate some of the best studies in the subfield and how scholars might better embrace the strength of the subfield's diversity by coordinating with scholars with similar topical interests. So doing, we attempt to articulate clearer boundaries that integrate discipline, method, and the distinction between law and public policy.


Introduction

The subfield of law and public policy is a dynamic, interdisciplinary field that has broad appeal to scholars, policy-makers, and stakeholders across a diversity of substantive areas like the regulation of financial markets, social welfare, and institutional design. Scholarship in the subfield is critical to our understanding of existing policy as well as to our understanding of the future of public policy as articulated by calls for reform. But with such great interdisciplinary appeal for legal scholars, public policy researchers, political scientists, and practitioners, also comes stark contrasts in conceptual and methodological approaches used in the subfield.

At times these different approaches reflect the nature of the subject matter, and at others the variations reflect the authors' academic training. Authors with law degrees may be more comfortable wading into the doctrinal intricacies and interpretation of legal texts arising from the promulgation of policy that cause non-lawyers to shudder. Similarly, those with legal training might balk at the sight of numbers, charts, and stars indicating statistical significance that are the hallmarks of the political science and public policy discipline— empirical analysis.

We intend to use this piece as a platform to advance two aims. First, we preface our piece by spending some time reflecting on definitions of the subfield of law and public policy. We discuss common ground, boundaries, and offer our own definition that seeks to identify and, to an extent, integrate the rich diversity of this subfield. Second, in keeping with the aims of the PSJ Yearbook, we will highlight the most important literature in the law and public policy field and summarize the key contributions of those pieces.2 We will focus on four substantive policy areas that have received significant coverage in the past three years: financial markets, campaign finance, healthcare, and social/family policies.3

What Is "Law and Public Policy?"

The subfield of law and policy is multidisciplinary and topically broad. Its non-singular approach to many of society's most pressing problems gives scholarly work under the law and policy umbrella a currency that resonates with policymakers, academics, organized interests, and citizens. But its unique strength is also a source of ambiguity that requires a foundational inquiry: what is "law and public policy?" Not surprisingly, we found multiple answers.

One early schism within the subfield was identified to exist between "public policy" scholars and their "public law" colleagues. The key distinction, according to Barclay and Birkland (1998), resides in the fact that even though the groups largely share disciplinary space—much of it political science-- public law scholars explicitly recognize that courts are policymakers and are part of political processes. Barclay and Birkland argue that public policy scholars, on the other hand, largely approach courts as somewhat removed from political power and restricted in their ability to influence policy. The first division then might be summarized in divergent perceptions of the role and potency of courts as policymakers.

A second division lies in the relationship between law and public policy scholars and traditional legal scholars. This division is more disciplinary or methodological than the public law and public policy scholarship divide. Unlike the political science and economic approaches common among the public law and public policy scholars, legal scholars examine doctrinal aspects of law with principles of legal reasoning and interpretation, often from a normative approach. (see, e.g., Nard 1995; Schuck 1989; see also fn 2). However, even this divide between political science departments and law schools are beginning to change. Many legal scholars blend social science methods with traditional doctrinal analysis and normative evaluations. (see, e.g., Eisenberg 2012; Wilson 2011).

Further complicating the complex nature of the subfield is that these three approaches to the discipline broach a wide array of substantive topics including, environmental policy, criminal law, social, financial regulation, public health, sociology, civil rights, education, and federalism. Indeed, one might argue that the subfield of "law and policy" is a really an attempt to create some boundaries around the incorporation of the three different approaches that share much common ground: public policy, public law, and legal doctrine. These strong commonalities notwithstanding, the lack of a unified approach makes it difficult to draw bright boundaries around this subfield.

Our search for an existing comprehensive definition for the discipline of "law and public policy," was unsuccessful— a fact that further highlights the very disjointed nature of the subfield. Our inquiry began with the top law and policy journals. We hoped to glean a better idea of the subfield's constitution by analyzing these journals' mission statements.

The Law & Policy journal defines its mission as embracing "varied research methodologies that interrogate law, governance, and public policy worldwide."4 The Cornell Journal of Law and Public Policy states its mantle is to publish "works that examine the intersections of compelling public or social issues and the law. As a journal of law and policy, we are a publication that not only analyzes the law but also seeks to impact its development."5 The Yale Law & Policy Review's description more narrowly echoes the sentiments of Cornell's journal as seeking pieces on the "intersection of law and policy."6 The Stanford Law & Policy Review states that its goal is to "inform public discourse by publishing articles that analyze the intersection of our legal system with local, state, and federal policy."7 While useful in framing broad conceptual interests, we were not surprised to learn that none of these journal missions provided clear boundaries for the subfield from a disciplinary or methodological perspective. Certainly there is little clarification on what it means to be law and public policy scholar.

We therefore find it important to offer a definition of the subfield. As a primary matter, we define "law" and we define "public policy."8 For the latter we borrow from Schneider and Ingram (1997, p. 77) articulation that "policies are the instruments through which societies regulate and control themselves." This definition is a useful starting point for our inquiry, however it is also problematic. Given the colloquial use of the term "law," Schneider and Ingram's definition could reasonably be applied with equal validity to define "law." In fact, their policy design model begins with statutory law. But the two can be distinguishable— not all policy is law and not all laws are policy. One way to distinguish the two is along the lines of discretion. Law is a body of universally binding customs and structure of governance that are nondiscretionary. In America, law constrains policy through judicial constitutional precedent, hierarchy of authority, e.g., federal administrative agencies must promulgate rules consistent with federal law and the federal constitution, separation of powers, federalism, and jurisdictional limitations. Policy better captures the discretionary instruments of regulation that operate within these confines of law. Policy represents the social and political choices that then can become expressed in legal texts or authorities.9

To compartmentalize the "law and public policy" subfield as the study of proposed or promulgated, discretionary regulatory instruments that operate within established nondiscretionary legal restrictions fails to capture the true nature of the subfield. This is because it does not capture the complex nature of the American public law governance process, which is comprised of a complicated web of federal, state, and local, courts, legislative bodies, administrative agencies, emerging private-public partnerships and quasi-governmental organizations.10 Nor does this definition include that which many policy scholars exclusively focus on and legal academics often overlook— the actual effect of public policy on societal actors. Further, this definition would neglect policy implementation. This is an area that some scholars, like Robichau and Lynn (2009), suggest public policy scholars fail to properly emphasize. Further still, a definition that simply distinguishes law and policy falls short in capturing the original aims of the public policy discipline that Fischer (2003: 3) described as originating from a desire to create an "applied social science that would act as a mediator between academics, government decision-makers, and ordinary citizens by providing objective solutions to problem."

We propose an inclusive definition for the subfield that embraces its substantive and methodological diversity and its core purpose. The law and public policy subfield focuses on policy problems and the interchange of (1) socially and politically constrained discretionary policy options to address those problems that are enacted through legal instruments (e.g., constitutional, statutory, regulatory, and judicial), (2) administrative practice (procedure and routine), and (3) social, political, legal, and economic impact (see Figure 1). A law and public policy approach reflects this interchange and is accordingly both practical and scholarly. A law and policy approach is open to a variety of single disciplines as well as multidisciplinary work; it is therefore amenable to normative, empirical, and theoretical approaches.

Figure 1. Law and Public Policy Subfield.

With this definition in mind, we sought to identify some of the best scholarship from top journals in both the social science tradition and legal tradition. The research below addresses the types of relationships between law and policy cabined in our definition of the subfield. We focus on four substantive policy problems that have received a good deal of popular and academic attention in the past few years: financial market regulation, campaign finance, health care reform, and social/family policy.

Law and Public Policy Scholarship in Review

Financial Markets Regulatory Reform. In the months after the financial services community came close to the brink of economic peril in 2008 there was no shortage of issues for scholars to address. Several targets included the subprime mortgage housing crisis, general market instability, and calls from the Obama Administration in 2009 for financial reform that resulted in the landmark Dodd-Frank Wall Street Reform and Consumer Protection Act.

A large and substantive focus of recent financial market law and policy work focused on credit related issues. A prominent piece of scholarship in this context comes from Barr-Gill and Warren (2008) who forcefully argued for greater regulation of credit markets. In their law review piece, the two law professors argued for stronger federal regulatory oversight of credit markets.

Barr-Gill and Warren, citing Gross and Soules (2002) and Mossoud et al. (2007), highlight that credit card consumers often demonstrate irrational behavior and make minor errors, such as overextending their borrowing limit when they have funds in their deposit to cover the charge resulting in large penalties or making decisions that result in easily avoidable interest payments. To hedge against consumer abuse, Barr-Gill and Warren proposed a regulatory framework that focused on ex-ante regulation, rather judicial scrutiny, the promulgation of regulations by a federal administrative agency with a broadly delegated mandate that could exercise authority over similar consumer credit products including credit cars, mortgage lending, and payday loans.

These calls for reform were answered by the Dodd-Frank Act, which, among other things, created an agency for credit oversight and regulation. Federal reforms also include federal preemption of state laws that regulated financial markets. These large shifts in the direction of financial regulatory policy have created new dynamics ripe for scholarly analysis.

Ding et al. (2012) studied the effect of federal preemption of state antipredatory lending laws on the quality of mortgages originated by covered preempted lenders. The results provide evidence that among exempted lenders, there is a higher increase n default risk than among loans subject to strong state antipredatory laws. The strongest differences in risk lie in refinanced mortgages with adjustable interest rates. The authors conclude that the preemption of state mortgage lending regulation by the federal government may actually result in an increase in mortgage default risk.

Some scholarship notes the particular negative impact the subprime mortgage bubble has had on racial minorities. Been et al. (2009) provide evidence, for example, that in 2006, 53.3% of first-time home buyers who were African-American had high cost loans compared to 46.2% for Latino buyers and 17.7% for white buyers. This problem is a part of a more systemic problem that predates the economic downtown of the late 2000s. As Williams et al. (2005) show, the increase of minority borrowers holding subprime loans rose substantially between 1993 and 2000. However, there is no simple solution to combat discriminatory policies. As legal scholars note, pursuing litigation to remedy individual cases of discrimination is often difficult because of the challenges posed to plaintiffs in mustering sufficient evidence to prove discrimination. (see, e.g., Selmi 2011). This raises questions for normative scholars that will be critical for the formation of future policy in this area— if discrimination can be proven to occur within these markets on a macro-level, what, if any, policy changes are necessary to assist remedying the injury that discrimination has on individuals? And what role should new agencies like the Consumer Financial Protection Bureau play in curbing discrimination with respect to credit and housing loans?

While federal action has prompted new areas of scholarship, the lack of federal preemption remains the focus of research. Ying (2010) tackles the issue of municipal bond ratings and the Credit Rating Agency Reform Act (CRARA) of 2006's express prohibition of SEC and states from regulating "the substance of credit ratings or the procedures and methodologies by which any nationally recognized statistical rating organization determines credit ratings."11 Ying's research suggested that municipal bond ratings agencies might be discriminating against municipalities with particular racial or ethnic compositions. A practice, which Ying emphasizes, does not violate existing civil rights law and is not remediable by the SEC because of CRARA.

As time passes the and full effects of Dodd-Frank, the CRARA, and other financial reforms become known, this area of scholarship is certain to expand along with calls for additional policy reforms to address the shortcomings of prior legislation.

Citizens United and Campaign Finance. In 2010, the United States Supreme Court ruled in Citizens United v. Federal Elections Commission12 that the First Amendment prohibited the government from restricting independent campaign expenditures for corporations, labor unions, and other similar nonprofit organizations. That decision generated a significant amount of media coverage and even presidential rebuke from Barack Obama during the 2011 State of the Union Address.

With renewed focus on campaign finance regulations, scholars from the legal, policy, and political science fields debated the implications of Citizens United, the acceptable boundaries in which Congress could regulate electioneering expenditures, and the assessed the overall effectiveness of campaign finance regulations, generally.

Scholars in the legal field proffered varying predictions regarding the potential impact of Citizens United on campaign finance restrictions. Hassan (2011) suggested that the Supreme Court's jurisprudence in the area was "incoherent" thus, making it incredibly difficult for policymakers to perceive what types of campaign finance reforms are constitutionally permissible. Others like Briffault (2011) rejected the notion that Citizens United would cause any dramatic shift in corporations' electioneering activity. Some, like Levitt (2011), even argue that the decision might even "enrich the political market place" by forcing politicians to renew grassroots efforts to overcome corporate spending. However, like the Citizens United itself, which argued the political system would not be compromised by the decision, these hypotheses are without empirical evidence.

Legal scholars, in large part, turned to arguments favoring disclosure requirements as a method to combat the projected consequences of the Citizens United decision. (see Bauerly and Hallstrom 2011; Briffault 2011; Mayer 2010). Briffault (2011) suggested that simple disclosures modeled from nutritional information disclosures would be effective means for disseminating the source of electioneering financing. Taking a different tact, Yosifon (2011) argued that corporate governance law is the key to curbing corporations from abusing the electoral process.

However, not all scholarship concerning the current state of campaign finance law is critical of the trend toward deregulation. Some empirical evidence weighs the dominant arguments in the legal academy favoring campaign finance restrictions. Bonneau and Cann (2011) suggest that campaign finance limitations disproportionately handicap challengers' electoral prospects because they restrict challengers' ability to overcome the advantages of incumbency through fundraising, thus distorting the democratic process. This finding complements formal modeling from Meirowitz (2008) who suggested tight caps on campaign spending disproportionately constrain already disadvantaged candidates.

With the changing and uncertain landscape of federal and state election law, empirical scholars will have many opportunities to explore the hypothesis forwarded by members of the legal academy about the electoral system post-Citizens United. Campaign finance reform will not be the only source for future electoral related topics. Indeed, as more states pass voter identification requirements, as many have since 2010, scholars would be wise to assess the impact of voter qualification reforms.

Healthcare Reform and the Future of the Affordable Care Act. In National Federation of Independent Business v. Sebelius,13 the United States Supreme Court upheld the Affordable Care Act, which sought to reform the American health care system through a series of policies that eliminated insurance discrimination on the basis of pre-existing conditions, expanded state Medicaid programs, and mandated all Americans of means to purchase health insurance do so at the risk of a financial penalty. The debate about the law's sensibility and effectiveness was ripe for normative and empirical scholars to delve into this area of law and policy.

One of the more controversial aspects of the Act was the tension it created between federal and state entities. States were tasked with implementing some of the most crucial components of the Affordable Care Act (see Greer 2011; Kersh 2011; Miller 2011; Miller 2010; Skocpol 2010; Nichols 2010; Weil and Scheppach 2010). States under the Act were required to expand their Medicaid programs, design health insurance exchanges, and high-risk insurance pools. The Supreme Court, however, in National Federation, struck down the Medicaid expansion requirement as coercively unconstitutional under the 10th Amendment. With states now having the option of opting in or out of the Medicaid expansion plans, the role of the states in implementing the Affordable Care Act will require new and additional attention from scholars. Studies evaluating the opt-in versus the opt-out states may yield particularly interesting results in the years to come.

Some observers, however, argue that this complicated patchwork of federal-state relations highlights the need for generic legal reforms to take place before health care policy reforms can be realized. Jost (2009) argued that Federal law limits states' options for health care reform at the same time while state law constrains federal reform, thus creating a pincher movement that stifles the possibility of private innovation. Congressional action could facilitate state reform.

In a similar vein, others have called for tort reform as a proxy for health care reform. Eisenberg (2012) argues that caps on non-economic damages likely decreases pressure on hospitals to improve care and that tort reform does not adequately address necessary improvements to poor quality care. Similarly, Thomas et al. (2010) found that the cost savings are generated from tort reform and damages caps were actually lower were typically anemic in comparison to estimated savings. Other research suggests that tort reform might be required to improve the level of care in particular areas of medical practice. Yang et al. (2012) studied state tort reforms and adverse birth outcomes and found that the result of looming potential for liability in tort "may produce a level of precaution taking in obstetrics that is higher than socially optimal."

While debate continues over the effectiveness of tort reform on the affordability of health care, there is also an important discussion on what type of tort reform is necessary. And though states like Texas have taken large measures to capping the amount of damages available to medical related tort suits with the hopes of staving off increasing health care costs,14 they have done so without shedding the traditional common law framework for recovering damages. Some scholars have analyzed state reforms. Paik et al. (2012), for example, analyzed Texas' reforms concluding that they were ineffective in curbing costs. In contrast to Texas and states like it, some scholars look toward other common law countries' that have abandoned traditional common law processes. Schuck (2008), for example, highlights the no-fault system employed by New Zealand and concludes that similar drastic reforms are not likely to occur in the United States but nevertheless called for more studies of the New Zealand system.15

Other health care policies beyond broad health care reform continue garner considerable attention by law and policy scholars. Kaestner and Khan (2012) looked at the impact on prescriptions drug insurance from reforms in Medicare Part D. Their study found Medicare Part D "significantly reduced socioeconomic and geographic disparities in prescription drug insurance among the elderly." These lowered rates of disparity in insurance coverage resulted in a 30 percent increase in the number of annual prescriptions filled and a 40 percent increase in prescription drug expenditures among the elderly population.

As New York City Mayor Michael Bloomberg proposed in 2012 to ban large soft drinks in order to curb America's obesity epidemic, law and policy scholars have come out with studies evaluating the impact of junk food bans in public schools, like New York City's. Datar and Nicosia (2012), controlling for children's BMI at school entry, found in their study of fifth graders that junk food availability alone does not significantly increase rates of obesity. Given the lack of empirical evidence that the availability of junk food correlates in higher obesity rates, the pair hazard that outright bans of junk foods "might appear premature given that they remove a key source of discretionary funds."

While Mayor Bloomberg pushes to ban big gulps and massive soft drink cups, other officials in Georgia, Virginia, and elsewhere are reconsidering alcohol regulations. In Georgia, many counties in 2011 and 2012 are opting to sell alcohol on Sundays while Virginians contemplate deregulating the state-controlled alcohol distribution. One study from Lovenheim and Steefel (2011) suggests that Sunday alcohol sales have little public health benefits and demonstrate that there is little evidence that Sunday alcohol sales are linked to traffic fatality rates.

Social/family Policy. Despite the disproportionate attention given to campaign finance, health care, and financial services reform due to the sluggish economy and Obama Administration's legislative agenda, social/family policy remains to garner significant attention from scholars, particularly on issues relating to sexual orientation, abortion, and family law. With rapidly shifting attitudes towards sexual minorities, sweeping policy changes on the state level on abortion, and evolving standards on the concept of family, social law and policy has and will continue to be a promising area of study for law and policy scholars.

In the area of sexual orientation-related policy Buchmueler and Carpenter (2012) studied the effect of health insurance mandates in California that required private employers to provide health insurance to same-sex couples in the same manner required for married heterosexuals. The pair found that there was no empirical evidence that the policy made a significant difference in the rate of coverage between gay and straight men. For lesbian women, however, the study concluded that the policy did increase health insurance coverage among lesbians relative to heterosexual women. The authors concluded that policies, like California's, could help remedy sexual orientation-based insurance disparities among non-heterosexual women.

Christafore and Leguizamon (2011) studied the relationship between sexual orientation discrimination and property values. Using Ohio, the Christafore and Leguizamon looked at the relationship between the percentage of voters in Ohio who voted for the state's constitution ban on same-sex marriage as a proxy for acceptance of nonheterosexuals to see if more conservative areas discriminated against same-sex couples. Using a data set comprised of over 20,000 house sale observations, they show that an increase in the number of same-sex coupled households is associated with an increase in house prices in more liberal neighborhoods and a decrease in house prices in more conservative neighborhoods. The authors concluded from their study that the results suggest that gay and lesbian coupled households do experience prejudice in conservative neighborhoods.

Many states are adopting new policies with respect to adoption in order to accommodate second-parent adoptions for same-sex couples. Wilson (2011) analyzed from both a normative and empirical perspective the influence of the American Legal Institute's de facto parent adoption standard which called on courts grant parental rights to non-biologically related adults if an adult can demonstrate a parent-child like relationship to a child. Wilson's argument, which did not address same-sex couples, was that the ALI's standard for parenthood was too thin and too risky for children. Wilson concluded in an empirical study of courts' use of the ALI's standard, that courts were not using the standards without serious additional requirements to demonstrate a parental relationship.

Wilson's calls for vigorous efforts on the behalf courts to use family law and combat the potential harms caused by domestic abuse on children are complemented by a recent study done by Carrell and Hoekstra (2012). Their study argues that social and judicial intervention to combat domestic violence have widespread social benefits. The authors' research demonstrates that "children exposed to as-yet-unreported domestic violence reduce the achievement of their classroom peers, these costs disappear completely once the parent reports the violence to the court." In light of these findings, policymakers should consider promulgating regulations and programs that encourage victims to report acts of domestic abuse. Scholars, similarly, should follow up on these programs and measure their effectiveness.

Ha and Cancian's (2010) family law study, like Wilson's, highlights problems in courts' handling of child custody. Their longitudinal study examines the earnings for noncustodial fathers who were first ordered to provide child support in 2000. While the research demonstrated many noncustodial fathers experienced large changes in earnings, very few of them had modified orders. The authors suggest that courts should be more responsive to changes in earnings. These calls for reform echo those of Heinrich et al (2011) who called for reforms to reduce child support debt with the hopes of increasing the receipt of child support.

Like sexual orientation policy, abortion policy continues to be a hot button topic. Colman and Joyce (2011) studied a Texas law that requires that all abortions at or after 16 weeks' gestation be performed in an ambulatory surgical center. In the month the law went into effect, not one of Texas's 54 nonhospital abortion providers met the requirements of a surgical center. Immediately after the law, the Colman and Joyce's research found the number of abortions performed in Texas at or after 16 weeks' gestation dropped 88 percent and the number of residents who left the state for a late abortion nearly quadrupled. After the law, post-16 weeks gestation abortions were available in a nonhospital setting were in four major Texas cities. Nine Texas cities provided these services prior to the law. The study also found the abortion rate at or after 16 weeks' gestation was 50 percent below its pre-Act

The authors concluded that statutory schemes, like the one studied in Texas, could have profound effects on the market for second-trimester abortions. Texas' law became the model for other states (as recently as 2012) like Kansas and Mississippi, to follow suit and enact similar statutory regulations. While litigation is likely to be pursued challenging these restrictions as infringing upon constitutional rights embedded in Roe v. Wade16 and Casey v. Planned Parenthood17, which enshrined a constitutional right to abortion services, law and policy scholars will likely continue to study the effect of state regulations that parallel the Texas law Colman and Joyce studied.

Conclusion

As we highlighted in the first part, there are many commonalities shared by law and policy scholars who come from policy, public law, and doctrinal disciplines. While some of these commonalities are obscured by diverging methodological approaches and topical focus, this review highlights that the common fibers that run through these three subsets of the law and policy subfield have much to learn from one another. Clear boundaries of the law and public policy discipline remain somewhat elusive. In the first part of this piece we sought to articulate clearer boundaries that integrate discipline, method, and the distinction between law and policy.

In the second part we focus on four recent substantive policy areas to illustrate some of the best, if not disparate, studies in the subfield. We conclude with an argument that empirical studies of sexual orientation, abortion, or campaign finance reform can benefit from an improved understanding of constitutional doctrine. Scholars from the legal academy might borrow from empirical social scientific analysis to supplement their normative legal arguments. The role of the courts cannot be lost in either approach and their command in shaping public policy requires substantial attention.

The law and public policy subfield is rich with topical, disciplinary, and methodological diversity. Scholars working in the law and public policy subfield might better embrace the strength of the diversity by coordinating with scholars with similar topical interests that adhere to diverging schools of thought in their approach to the subfield. Fora such as the Journal of Empirical Legal Studies provide a positive step in the direction of institutionalizing integration. The PSJ Yearbook is another excellent research with which scholars can identify each other and find reviews of subfield research. But ultimately, individual scholars must make use of such tools. For law and public policy we must take it upon ourselves to pursue cross-conversations within law and public policy if we are to become a subfield that is populated by more than ships passing in the night. To this end we hope that our attempt at defining the subfield and illustrating its reach within four substantive policy areas will serve as an illustration and platform with which to scholars might seed conversations leading to more coherence and identity within law and public policy.


1Anthony Michael Kreis is a Ph.D candidate at the University of Georgia's School of Public and International Affairs' in the Department of Political Science and Department of Public Administration and Policy. He holds his J.D. from Washington and Lee University and completed research at the University of Virginia in public law. He specializes in the intersection of sexual orientation, policy process, and the law.

Robert K. Christensen is assistant professor of Public Administration in the Department of Public Administration and Policy, School of Public and International Affairs, at the University of Georgia. He received his Ph.D. from the School of Public and Environmental Affairs, Indiana University-Bloomington and his J.D. from the J. Reuben Clark Law School, Brigham Young University. He has received several research recognitions, including a best dissertation award from the Academy of Management for his work on courts and school integration. He is currently a Lilly Teaching Fellow at the University of Georgia.

2Our focus is more on policy and is therefore more descriptive and empirical, than it is normative and philosophical. We do recognize, however, important conversations in legal theory and political philosophy are also relevant. (see e.g., Birkland 2010; Rawls 1988; Skene 2012).

3The term "social policy" is a broad term that is not particularly manageable despite its widespread use in the media and some academic circles. Though it is tempting to describe the issues discussed in this review, abortion, same-sex couples, nondiscrimination, etc., under the umbrella of "social policy," we recognize that it is too broad. While family law might be a better term to use, it is too narrow for our purposes here, though it does capture a large portion of the topics discussed. Additionally, while there are many other areas of law and policy that are worthy of addressing in this piece but are not touched on, one such area is the study of governance, which the Policy Studies Journal has wisely dedicated an entire piece to reviewing (see Robichau 2011).

4Law & Policy is a traditional social science, peer-reviewed journal. The Law & Policy mission statement is located on the journal's homepage: http://www.wiley.com/WileyCDA/WileyTitle/productCd-LAPO.html.

5The Cornell Journal of Law and Public Policy is a non-peer reviewed, law review organized and edited by current Cornell Law School students. The journal's mission statement is located on the journal's website, http://www.lawschool.cornell.edu/research/JLPP/jlpp-history.cfm.

6The Yale Law & Policy Review is a non-peer reviewed legal periodical edited by current Yale Law School students. The journal's mission statement is located at, http://yalelawandpolicy.org/aboutus.

7The Stanford Law & Policy Review is a non-peer edited, symposium style, legal periodical edited by current Stanford Law School students. The Review's mission statement is located at, http://slpr.stanford.edu/.

8Policies are often implemented in the private sector, jointly by private parties and government actors, and through other mechanisms including social norms and market transactions. (see Arnold, Craig Anthony (Tony) (2004). Working Out an Environmental Ethic: Anniversary Lessons from Mono Lake. Wyoming Law Review 4: 1-55, at p. 8.). However, for purposes of this piece, we focus on state actors whom are governed by constitutional principles, unlike private actors. However, private policies do have implications with respect to public law and policy. For example, corporate nondiscrimination policies can be meaningful within the context of compliance with Title VII of the Civil Rights Act of 1964. (see, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)).

9Although we also recognize that others have drawn policy as a subset of law, rather than a superset of law (see e.g., Hothersall and Bolger, 2010). Policy considerations also are made within judicial institutions, thus further complicating the relationship between law and policy. Courts routinely evaluate policy outcomes as judges contemplate constitutional doctrine, engage in statutory interpretation, and craft remedies for aggrieved parties.

10New and evolving public and quasi-public entities complicate the law and policy distinction. For example, within the land use regulatory system, local comprehensive plans and federal agency plans for the management of lands and resources, which are often statutorily mandated, are thinly controlled by statute as to their content. Thus, drafters enjoy discretion in formulating goals and implementation. While they appear like pure policy at first blush, they often control other lower-level policy. Inconsistent policies are struck down when they conflict with the long-term land use plans. But whereas they control the outcome of conflicting policy like statutory law, they, unlike statutes, are interpreted loosely and easily amended. One scholar compared plans to the Pirate's Code of the Pirates of the Caribbean: more like guidelines than actual rules. (see Arnold (2007). The Structure of the Land Use Regulatory System in the United States. Journal of Land Use and Environmental Law 22: 441-523, at pp. 484-95.)

1115 U.S.C.A. § 78o-7(c)(2) (2012).

12558 U.S. 50 (2010).

13567 U.S. __ (2012), available at http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf.

14Under a 2003 Texas law, noneconomic damages in medical malpractice suits are capped at $250, 000. Tex. Civ. Prac. & Rem. Code Ann. § 74.301 (2011).

15While this review is limited to an American-centric discussion of law and public policy in order to limit the scope and minimize the complexity of comparing law and policy between nations with varying political traditions, legal systems, and institutional design, this piece is particularly excellent to show how Americanists can glean solutions for public policy problems in the United States from other countries.

16410 U.S. 113 (1973).

17505 U.S. 833 (1992).


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