Controlling policy by controlling process: Judicial influence on regulatory decision making

Emerson H. Tiller*

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    29 Scopus citations

    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.

    Original languageEnglish (US)
    Pages (from-to)114-135
    Number of pages22
    JournalJournal of Law, Economics, and Organization
    Volume14
    Issue number1
    DOIs
    StatePublished - Apr 1998

    ASJC Scopus subject areas

    • Economics and Econometrics
    • Organizational Behavior and Human Resource Management
    • Law

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