The Strategy of Judging: Evidence from Administrative Law

Journal of Legal Studies, Vol. 31, No. 1, Part 1

Posted: 26 Mar 2002

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Abstract

Recent theories of judicial decision making suggest that federal judges are likely to exploit the structure of law to protect decisions which implement their policy preferences. One perspective asserts that judges, when making decisions that move policy toward their preferred policy outcomes, will be more likely to choose legal grounds -- or judicial instruments -- that are difficult for other political actors to reverse than when making decisions that move policy away from the judges' preferred outcomes. We test this "strategic instrument" perspective and compare our results with those expected from other models of judicial decision making. Using federal circuit court cases reviewing the Environmental Protection Agency from 1981 to 1993, we conduct both bivariate analysis and multinomial logit regression to measure the effect of policy goals on the legal instruments chosen by judges. Our results support the conclusion that strategic considerations systematically influence judicial decision making.

Suggested Citation

Tiller, Emerson H. and Smith, Joseph L., The Strategy of Judging: Evidence from Administrative Law. Journal of Legal Studies, Vol. 31, No. 1, Part 1. Available at SSRN: https://ssrn.com/abstract=301985

Emerson H. Tiller (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Joseph L. Smith

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

1101 Au Sable Hall
Allendale, MI 49401
United States

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