Strategic Instruments: Legal Structure and Political Games in Administrative Law

Posted: 29 Feb 2008

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This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows actors to insulate their policy choices from higher level review. The theory is based on the notion that decision instruments (for example, rulemaking and adjudication for agencies, statutory interpretation and reasoning process review for courts) pose differential costs and payoffs for both the initiating and reviewing actors, each of whom have resource constraints. Because the initiating actor has the choice among instruments to make a decision (and to which a higher level reviewing actor is tied), the initiating actor can manipulate decision costs in a strategic fashion (choosing high-cost instruments to discourage higher level review, in particular). This article adds new insight into how judges and agencies engage in strategic decision making.

Suggested Citation

Tiller, Emerson H. and Spiller, Pablo T., Strategic Instruments: Legal Structure and Political Games in Administrative Law. Journal of Law, Economics, and Organization, Vol. 15, No. 2, pp. 349-377, 1999, Available at SSRN:

Emerson H. Tiller (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Pablo T. Spiller

University of California, Berkeley - Business & Public Policy Group ( email )

545 Student Services Building
Berkeley, CA 94720
United States
510-642-1502 (Phone)
510-642-2826 (Fax)

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