The Strategy of Judging: Evidence from Administrative Law

Posted: 3 Oct 1997

Multiple version iconThere are 2 versions of this paper

Date Written: September 1997

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

Suggested Citation

Smith, Joseph L. and Tiller, Emerson H., The Strategy of Judging: Evidence from Administrative Law (September 1997). Available at SSRN: https://ssrn.com/abstract=11389

Joseph L. Smith

Grand Valley State University - Department of Political Science ( email )

1101 Au Sable Hall
Allendale, MI 49401
United States

Emerson H. Tiller (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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