Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making

Journal of Law, Economics, and Organization, Vol. 14, No. 1, Spring 1998

Posted: 25 Feb 1998

Abstract

In this paper, the ability of a federal appellate court to control agency policy by imposing process requirements upon the agency is analyzed under two administrative law regimes: the deference doctrine, where appellate courts are strictly limited in their ability to interfere with agency decision making, and the non-deference doctrine, where courts have greater reign in scrutinizing agency decision making. The emphasis on the judiciary's ability to affect regulatory process complements earlier scholarship in positive political theory that focused mainly on Congress' ability to use administrative process to control agency behavior. A model of judicial control is developed to allow for comparative statios considering different legal doctrines, shifting agency and judicial preferences, and changing agency resources. An examination of the Federal Energy Regulatory Commission and the D.C. Circuit Court of Appeals' battle over the deregulation of oil pipelines is undertaken to illustrate the insights of the model. Further evidence bearing on the model is also reviewed.

JEL Classification: L51

Suggested Citation

Tiller, Emerson H., Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making. Journal of Law, Economics, and Organization, Vol. 14, No. 1, Spring 1998. Available at SSRN: https://ssrn.com/abstract=54820

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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