The strategy of judging: Evidence from administrative law

Recent theories of judicial decision making suggest that federal judges are likely to exploit the structure of law to protect decisions that implement their policy preferences. One perspective asserts that judges, when making decisions that move policy toward their preferred policy outcomes, will be more likely to choose legal grounds - or judicial instruments - that are difficult for other political actors to reverse than when making decisions that move policy away from their preferred outcomes, We test this "strategic instrument" perspective and compare our results with those expected from other models of judicial decision making. Using federal circuit court cases reviewing the decisions of the Environmental Protection Agency from 1981 to 1993, we conduct both bivariate analysis and multinomial logit regression to measure the effect of policy goals on the legal instruments chosen by judges. Our results support the conclusion that strategic considerations systematically influence judicial decision making.