PUBLIC ADMINISTRATION
School of Public Policy
Credits: 4
Fall -Winter Semester, AY 2015-2016
Instructors: Marie-Pierre Granger, Orsolya Salat, Kristina Irion
Course outline
Taught by lawyers, this is a course targeting public policy doctoral students who do not have a legal
background. It aims at familiarizing students with legal aspects which are important to the study and
practice of public administration and public policy.
Whilst law imposes constraints on, as well as provide opportunities for policy development and change,
legal materials is often difficult to access and comprehend for non-lawyers, and legal institutions,
mechanisms and dynamics not always well understood by public policy students and scholars. This
course will help students develop a more sophisticated understanding of the context in which public
policies are designed and implemented, by equipping them with practical and analytical tools which are
necessary to understand the relevance of law in public administration and public policy research and
practice.
The seminars will expose students to legal materials, the access and understanding of which may be
essential to researchers in public policy; legal perspectives complementary of more traditional
approaches to public administration and public policy issues, which draw more on political science or
political economy perspectives; and social sciences research which explores legal institutions and
dynamics.
The course is designed in a way which encourages students to link in with their own research topic.
The first part of the course will focus more on judicial aspects, ie the role of courts and litigation and
their impact on policy making, whilst the second will address more specifically regulatory issues.
Aims
The course aims to
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familiarize students will legal materials;
expose legal frameworks which impact on policy-making at various governance levels
(international law, human rights agreements, constitutions, legislation, case law, soft law,
etc);
present the main legal and judicial processes and mechanisms relevant to policy-making;
engage with relevant legal scholarship;
critically study social science scholarship which address legal institutions, mechanisms and
dynamics;
discuss and critical reflect on the role of law and legal scholarship in public policy research
and practice.
Learning outcomes
By the end of the course students should be able to:
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identify, find and get an understanding of legal materials (legislation, treaties, cases, codes,
scholarly works, etc.)
draw upon legal materials and legal scholarship to refine their understanding of public
policy;
develop conceptual frameworks for the study of legal dynamics which have an impact on
public policy.
Communication and course materials
All core readings are available on the course Moodle e-learning platform.
Seminars organization
Students should prepare for the seminars by reading requested materials and carrying out specific
tasks, as specified for each seminar. They are expected to contribute actively to seminars’ discussion.
Assessment (2 x 50%)
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Class participation (2 x 10 %)
One presentation (including written handouts) which should provide a critical assessment of a
legal or social science article, which address legal issues, related to the topic of the student’s
own research, where possible (2 x 10 %)
2 x 1 research paper (5000 words) (2 x 30%)
Deadlines
 Submission of choice of paper topic : 31 October 2015
 Submission of research paper 1: 31 December 2015
 Seminar presentation: Presenters are required to submit their presentation outline (or draft) to
instructor 2 days in advance of the class.
Topics
Week 1
Law for public policy
Introduction
Week 2
‘Legal (re)search’: where and how to find the
law
Methods and theories
Week 3
Legal scholarship – what questions do legal
scholars ask, and how do they answer them?
Week 4
Judicial behavior and legal reasoning – what
judges (actually) do?
Week 5
International Law and International Relations
Week 6
Human Rights
Week 7
Constitutions
Week 8
Law, Courts and the European Union
Week 9
Constitutional review& policy-making
Sources
Mobilizing the law for policy-change and
implementation
Week 10 Judicial review & compliance
Week 11 Litigation & policy change
Week 12 Accountability in a global governance era Global administrative law
Week 1 – Law for public policy
Task 1
Check a couple of public policy books and/or journal issues with which you are familiar, and report on
the place given to legal aspects, issues or research.
Task 2
Based on your previous studies or personal and professional experience, identify three ways in which
law matters for public policy.
Mandatory reading
 ·
Zhiyong Lan and David H. Rosenbloom (1992) ’ Editorial: Public Administration in
Transition?’ Public Administration Review 52:6, 535-537
 ·
L. E. Lynn (2009), ‘Restoring the Rule of Law to Public Administration: What Frank
Goodnow Got Right and Leonard White Didn't. Public Administration Review 69, 803–813.
Week 2 – ‘Legal (re)search’: where and how to find the law
In this seminar, we will examine the question of the ‘accessibility’ of legal materials and engage with the
different sources of law and structure of the legal system. You are encouraged to think about the ways
law may matter for your own research.
Task
Using legal databases accessible from CEU (e.g. Westlaw or LexisNexis), or publically accessible ones (eg
governmental, national courts, etc.), try to find a statute, a regulation, or a court case which in any way
relates to your doctoral research. If you do not find anything in relation to a specific country you
research on, try finding it in relation to another country. Be ready to answer the following questions.
What did you look for? Which database did you use? What difficulties did you encounter? Are you sure
what you found was the ‘aw in force’? How do you know? Will you need to look for legal materials for
your own research? What kind?
Mandatory reading
 Joseph L. Gastwirth (2013), ‘Should law and public policy adopt ‘practical causality’ as the
appropriate criteria for deciding product liability cases and public policy?’ Law, Probability and
Risk 12: 3-4, 169-188
Week 3 – Legal scholarship – what legal scholars do, and why it matters for public policy?
In this seminar, we will discuss the different types of legal scholarship (‘black-letter’, critical, legal
theory, law in context, socio-legal, comparative, etc.), and contrast these with social sciences
approaches to research. The objective is to assess the benefits and pitfalls of multi- and crossdisciplinary engagement and its relevance to the study and practice of public policy.
Task
Using Westlaw or LexisNexis, identify a ‘legal’ article which relates to your research topic: What type of
questions does it ask? What is the claim/argument? What methods are used? What is the theoretical
framework? What kinds of conclusions are reached? What kind of legal scholarship is it? In what way
does it differ from academic literature you are more familiar with (eg sociology, political science, IR etc)
Mandatory reading
 Christopher, McCrudden (2006), ‘Legal research and the social sciences’ Law Quarterly Review
122: 632-665
 M. Partington, ‘Empirical legal research and policy-making’ in Cane and Kritzer, Oxford
Handbook of empirical legal research (Oxford University Press, 2010) p. 1002
Week 4 – Judicial decision-making – What judges do?
Social scientists and legal scholarship tend to think differently about how (well) courts decide. In this
class, we will explore these differences, and look for ways of reconciling these approaches, in a way
which can help to support legal and policy change.
Task
Identify, in your area of research a social science or legal article which seeks to explain or assess the
decisions of a particular court. Be ready to summarize the article/chapter during the seminar,
emphasizing which factors (‘variables’) are identified as most determinant, and in which of Posner’s nine
theories of judicial behaviour this would fit.
Mandatory reading
 Richard A. Posner (2008), How Judges Think (Harvard University Press) Chapter 1 – Nine theories
of judicial behaviour, p. 19-56
 Vicki C. Jackson and Jamal Greene (2011), ‘Constitutional interpretation in comparative
perspective: comparing judges or courts?’ in T. Ginsburg and Rosalind Dixon, Comparative
Constitutional Law (Edward Elgar) p.599-623
Week 5 International Law
International law’s increasing relevance in a globalized world is a commonplace in legal scholarship, but
it has not always been so. International law has traditionally been looked down for not being ‘real’ law
since it largely lacks direct applicability in domestic law, just as it lacks its own enforcement
mechanisms. In this sense, its ability to influence domestic policy and lawmaking is also questionable.
This session will look into more recent developments which might challenge this traditional assumption.
Task
Identify international legal norms (most likely an international treaty) which relates to your topic of
research. Check whether the country you work with has ratified it, and whether you find any reference
to it in any regulation or in court cases.
You may start there: https://treaties.un.org/.
Mandatory reading
 Tom Bingham (2011),’ The rule of law in the international legal order’ in T. Bingham, The rule of
law , (Penguin London) 110-133
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Gregory Shaffer and Tom Ginsburg (2010) ‘How does international law work?’ in Cane and
Kritzer, Oxford Handbook of empirical legal research (OUP, 2010) 756-783
Week 6 Human Rights
Traditional suspicions towards international law are intensified and multiplied when it comes to human
rights, a category which to some might sound inadequate not only in law, but even in philosophy. At the
same time, there is much talk in legal scholarship of a ‘rights revolution’. The readings assess to what
extent and in what ways these assumptions hold true in practice in view of the certainly mushrooming
human rights instruments, and their potential to frame public policies.
Task 1
Find the text of the European Convention of Human Rights and Fundamental Freedoms, including its
protocols. Do you see it relates in any way to your research? Whether yes or no, do you consider this as
a deficiency or a merit? For example, can you think of an issue where human rights considerations
precluded rational public policy, or quite to the contrary, human rights promoted it?
Task 2
Try finding a case of the European Court of Human Rights (or any other human rights body of your
choice) which had policy implications, preferably in your field of interest.
Use www.hudoc.echr.coe.int, which is the search engine for the ECtHR, but you might also use
Westlaw or LexisNexis.
Mandatory reading
 Linda Camp Keith, ‘Human rights instruments’ (2010) in Cane and Kritzer, Oxford Handbook of
empirical legal research (Oxford University Press) 353-376.
 Dia Anagnostou (2010) ‘Does European human rights law matter? Implementation and domestic
impact of Strasbourg Court judgments on minority-related policies, The International Journal of
Human Rights, 14:5, 721-743
Week 7 Constitutions
The primary and most essential function of a constitution according to legal scholarship is to limit
government by separation of powers and by granting individual rights. In order to live up for this “selflimitation of power,” constitutions are normally entrenched in that they are harder to amend than other
legal rules. Constitutions therefore might prevent, but also might facilitate -- even mandate -- the
realization of a particular public policy more drastically than perhaps any other legal norm.
Task 1
Find online and go through the text of three selected constitutions, and find two provisions in each
which -- assuming they are adhered to in practice -- ought to have an impact on the possibilities of
public policy making in the given country. Try making a difference between structural norms relating to
the state on the one, and norms pertaining to individual rights and liberties on the other hand.
Mandatory reading
 David S Law (2010), ‘Constitution’s in Cane and Kritzer, Oxford Handbook of empirical legal
research (Oxford University Press) 376-399.
 Kai Möller (2014) From constitutional to human rights: on the moral structure of international
human rights http://eprints.lse.ac.uk/59305/1/Moller_From-constitutional-to-humanrights_2014.pdf
Week 8 Law, Courts and the European Union
Law has, and continues to play, a central role in European integration and governance. Scholars however
disagree about the dynamics of interactions between law and politics in the EU, as well as on the
desirability of integration (or governance) through law. In this seminar, we will engage with scholarly
work which explores the relevance of law and courts for policy-making and governance at EU level.
Task
Read the CJEU decision on the Data Retention Directive (C-293/12 and C-594/12 Digital Right Ireland),
http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=en
&mode=lst&dir=&occ=first&part=1&cid=12322
Answer the following questions:
1. Which existing theories of legal integration (see Stone Sweet 2010) or judicial decision-making
(see Posner’s theories in Week 4) have a better leverage in explaining the outcome of this
case?
2. How much discretion and policy-(un)making power do proportionality testing grant courts?
Mandatory reading
 Alec Stone Sweet, "The European Court of Justice and the judicialization of EU governance",
Living Rev. Euro. Gov. 5, (2010). http://www.livingreviews.org/lreg-2010-2
 Kelemen, R. Daniel. "Suing for Europe Adversarial Legalism and European Governance."
Comparative Political Studies 39.1 (2006): 101-127.
Background
 Those who are not familiar with the EU and EU law may want to read the relevant chapters in
classic EU law textbooks (eg Chalmers, Davies and Monti ‘EU law’ (2014); TC Hartley ‘The
Foundations of EU law (2014), Craig and De Burca, ‘EU Law – Text, cases and materials, 2011) –
look for chapter on EU sources of law or instruments (ie Treaties, Directives, regulations,
Decisions, etc), primacy and direct effect, free movement of workers and EU citizenship.
Week 9 Constitutional review & policy-making
Constitutional review, where it exists, implies there is an institution vested with the power of annulling
or disapplying legal norms produced by democratically legitimated legislatures or governments. In this
session, we will discuss the tensions between constitutionalism and majoritarian democracy, using the
example of social and economic policy.
Mandatory reading
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Michel Rosenfeld (2001), ‘The Rule of Law and the Legitimacy of Constitutional Democracy’, 74
Southern California Law Review 1307
Alec Stone Sweet (2008), ‘Proportionality balancing and global constitutionalism’, 47 Colum. J.
Transnat'l L. 72
Task
Read Decision 43/1995 of 30 June 1995 of the Hungarian Constitutional Court on social security benefits,
in Constitutional judiciary in a new democracy: the Hungarian Constitutional Court, eds László Sólyom,
Georg Brunner, Ann Arbor, University of Michigan Press, 2000, 325-332 and then read carefully
Art 37 of the 2012 Hungarian Fundamental Law, especially paragraph 4:
http://www.kormany.hu/download/e/02/00000/The%20New%20Fundamental%20Law%20of%20Hunga
ry.pdf
Assess on the basis of Art 37 (4) of the new constitution, how the Court would deal with the complaint
had it arisen in 2013, and not in 1995 (deficit was over 50% in both years).
Week 10 – Judicial review & compliance
In this seminar, we will focus on one particular aspect of administrative justice, which has received
prominent attention from legal scholarship, namely judicial review. We will also consider other judicial
remedies (eg damages in tort, injunctions, interim relief, etc) and non judicial mechanisms (eg
complaints to ombudsman, independent authorities) which can be activated when public authorities or
private providers of public services get it wrong. We will assess to what extent legal mechanisms
contribute to policy-implementation and compliance.
Task
Find an article, if possible connected to your research area, which explores the use or effectiveness of
judicial or non-judicial remedies against public authorities or private actors fulfilling public service
functions, or assessing the use of legal mechanisms to ensure policy-implementation and compliance. Be
ready to present it during the seminar, and assess its relevance in policy change. These could concern
judicial review proceedings, but also state liability, injunctions, interim reliefs, use of ombudsman,
complaint to an independent authority, etc.
Mandatory reading
 S. Halliday and Colin Scott, ‘Administrative Justice’ in Cane and Kritzer, Oxford Handbook of
empirical legal research (OUP, 2010) p. 469
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Peter Cane, Judicial review and merits review comparing administrative adjudication by courts
and tribunals in Rose-Ackerman, Susan, and Peter L. Lindseth, eds. Comparative administrative
law. Edward Elgar Publishing, 2010, 426
Week 11 - Litigation and policy change
Litigation is one mode of either preventing or triggering policy change. However, the ability of (strategic)
litigation in producing actual policy and social change is contested. In this seminar, we will engage with
social sciences studies which explore the limits of legal change and the importance of civil society
mobilization for effective court-induced policy transformation.
Mandatory reading
 Marc Galanter, "Why the" haves" come out ahead: Speculations on the limits of legal change."
Law and society review (1974): 95-160.
 Catalina Smulovitz, ‘Law and courts’ impact on development and democratization’ in Cane and
Kritzer, Oxford Handbook of empirical legal research (OUP, 2010) p. 729
 OR
 Conant, Lisa J. Justice contained: law and politics in the European Union. Cornell University Press,
2002, Chapter 7 and 8 (177-242)
Questions
 Do litigation offer an effective avenues for civil society organizations seeking policy change?
 What are the limits of litigating for policy change?
 How would you square these studies of mobilization around legal norms with public policy
theories on policy change?
 Can we study policy change through litigation using the same concepts used to study other
modes of policy-making?
Task
Find examples of successful and failed litigation related to your area of research or a matter of personal
or professional interests. How would you define success and failure? How would explain success or
failure in these cases, drawing on theoretical framework which seek to explain policy-change.
Week 12 Accountability in a global governance era - Global administrative law The development of global regulatory regimes, in which public and private actors interact to regulate
policy areas beyond the confines of specific states, poses particular challenges for legal systems, which
are traditionally organized around territorial lines. These difficulties are explored by a new trend in legal
scholarship called ‘global administrative law’, which draws upon comparative administrative law to
propose mechanisms and principles aimed at holding global regulatory regimes, whether public or
private, accountable.
Mandatory reading
 Carol, Harlow (2006) ‘Global administrative law: the quest for principles and values’, European
Journal of International Law 17.1: 187-214
 Benedict Kingsbury, Nico Krisch, and Richard B. Stewart (2005). ‘The emergence of global
administrative law’ Law and contemporary problems 15-61.
Questions
 What kind of questions scholarship which studies global governance ask? How do they answer
them?
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Based on the two mandatory readings, what is the contribution of legal scholarship to the global
governance literature?
Can law provide for effective means to hold global regulatory bodies accountable?
Selective bibliography
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Bingham (2011) The rule of law (Penguin London)
Cane and Kritzer (2010), Oxford Handbook of empirical legal research (Oxford University Press)
Ginsburg and Dixon (2011), Comparative Constitutional Law (Edward Elgar)
Harlow and Rawling (2009), Law and Administration (Cambridge University Press)
Lasser, Judicial Deliberations (Oxford University Press, 2004)
Richard A. Posner (2008), How Judges Think (Harvard University Press)
Shapiro and Stone Sweet (2002) On Law, Politics and Judicialization (Oxford University Press)
Stone Sweet (2000) Governing with judges (Oxford University Press)