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

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  • Tiller, Emerson H

Abstract

In this article, 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 nondeference 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 statics 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. Copyright 1998 by Oxford University Press.

Suggested Citation

  • Tiller, Emerson H, 1998. "Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 14(1), pages 114-135, April.
    • Handle: RePEc:oup:jleorg:v:14:y:1998:i:1:p:114-35
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    Cited by:

    1. Guerriero, Carmine, 2006. "Dependent Controllers and Regulation Policies: Theory and Evidence," Privatisation Regulation Corporate Governance Working Papers 12204, Fondazione Eni Enrico Mattei (FEEM).
    2. Nuno Garoupa, 2004. "Punish Once or Punish Twice: A Theory of the Use of Criminal Sanctions in Addition to Regulatory Penalties," American Law and Economics Review, American Law and Economics Association, vol. 6(2), pages 410-433.
    3. Guy Holburn & Richard Bergh, 2006. "Consumer capture of regulatory institutions: The creation of public utility consumer advocates in the United States," Public Choice, Springer, vol. 126(1), pages 45-73, January.
    4. Brooks, Richard R W, 2002. "Liability and Organizational Choice," Journal of Law and Economics, University of Chicago Press, vol. 45(1), pages 91-125, April.
    5. De Figueiredo, John M. & De Figueiredo, Rui J. P. Jr., 2002. "The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation," Working papers 4247-02, Massachusetts Institute of Technology (MIT), Sloan School of Management.
    6. John M. de Figueiredo, 2009. "Integrated Political Strategy," NBER Working Papers 15053, National Bureau of Economic Research, Inc.

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