Does the Solicitor General Advantage Thwart the Rule of Law in the Administrative State?

11 Pages Posted: 22 Dec 2008

See all articles by Jim Rossi

Jim Rossi

Vanderbilt University - Law School

Date Written: December 21, 2008


Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some of this bias towards circuit court decisions in defining the rule of law in administrative law practice and scholarship. However, this Comment argues that what Cohen and Spitzer's empirical finding of "government litigant advantage" means more generally for the rule of law in the regulatory context requires further elaboration.

Keywords: Supreme Court, Judicial Review, Administrative Law, Constitutional Law

Suggested Citation

Rossi, Jim, Does the Solicitor General Advantage Thwart the Rule of Law in the Administrative State? (December 21, 2008). Florida State University Law Review, Vol. 28, 2000, Available at SSRN:

Jim Rossi (Contact Author)

Vanderbilt University - Law School ( email )

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