Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process

Abstract:     
In this paper, the authors develop a formal model of strategic interaction between federal regulatory agencies, appellate courts and the Supreme Court. The focus of the paper is on the ability of actors on the lower end of the review hierarchy (agencies and appellate court panels) to impose decision making costs on higher levels of review (appellate courts and the Supreme Court) by selecting the grounds (or "instruments") on which they base their decision.For agencies, the choice of instruments may be rulemaking vs. adjudication. For appellate courts, the choice to overturn an agency may be based on process vs. statutory interpretation. Certain instruments are more difficult for higher courts to review than others. Because higher level actors are resource constrained, they tend to defer to lower level decision makers more often if a high cost review instrument is involved. This allows for strategic behavior by the lower level actors.

working papers series