The Strategy of Judging: Evidence From Administrative Law

Abstract:     
In this paper, the authors test whether or not judges act strategically in choosing the "instruments" they use to reverse regulatory agency decisions. Using all published federal appellate court decisions reviewing the EPA from the years 1981-1992, the authors find support for the notion that judges strategically select among the grounds for decisions based upon their desire to make the decision stick. In particular, the authors find that when Republican judicial panels reverse the EPA in favor of business interests, they use process instruments (which are more difficult for higher courts to review) more often than when they are reversing in favor of environmentalists. In contrast, Democratic judicial panels are more likely to use process instruments when they reverse the EPA in favor of environmentalists than when they are reversing in favor of business interests. The results are statistically significant.

JEL Classification: K23, K32

working papers series