Controlling Policy by Controlling Process
Emerson H. Tiller
Northwestern University - School of Law
In this paper, the ability of a federal appellate court to control agency policy by imposing process requirements upon the agency is analyzed under two administrative law regimes: the deference doctrine, where appellate courts are strictly limited in their ability to interfere with agency decision making, and the non-deference doctrine, where courts have greater reign in scrutinizing agency decisionmaking. The emphasis on the judiciary's ability to affect regulatory process complements earlier scholarship in positive political theory that focused mainly on Congress' ability to use administrative process to control agency behavior. A formal model of judicial control is developed to allow for comparative statistics considering different legal doctrines, shifting judicial preferences, and changing agency resources.An examination of the Federal Energy Regulatory Commission and the D.C. Circuit Court of Appeals' battle over the deregulation of oil pipelines is undertaken to illustrate the insights of the model.
Date posted: September 5, 1997
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