TY - JOUR
T1 - Controlling policy by controlling process
T2 - Judicial influence on regulatory decision making
AU - Tiller, Emerson H.
N1 - Funding Information:
I thank Edwin Epstein, John de Hgueiredo, Charles North, Daniel Rodriguez, Martin Shapiro, Joseph Smith, Pablo Spiller, David Teece, Klaus Toft, Barry Weingast, Oliver Williamson, and two anonymous referees for helpful comments and the John M. Olin Foundation for financial support.
PY - 1998/4
Y1 - 1998/4
N2 - 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.
AB - 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.
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U2 - 10.1093/oxfordjournals.jleo.a023393
DO - 10.1093/oxfordjournals.jleo.a023393
M3 - Article
AN - SCOPUS:0032372381
VL - 14
SP - 114
EP - 135
JO - Journal of Law, Economics, and Organization
JF - Journal of Law, Economics, and Organization
SN - 8756-6222
IS - 1
ER -