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69 S. Cal. L. Rev. 431 (1995-1996)
Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test

handle is hein.journals/scal69 and id is 447 raw text is: SYMPOSIUM JUDICIAL DEFERENCE TO AGENCY ACTION: A RATIONAL CHOICE THEORY AND AN EMPIRICAL TEST LINDA R. COHEN* MATTHEW L. SPrrZER** I. INTRODUCTION In this Article we present a simple game theoretic model that predicts that the Supreme Court will manipulate administrative law so as to shape regulatory policy in the United States. We also present several tests of empirical data that support the model's predictions. Each year, the Supreme Court decides a variety of appeals from actions of federal regulatory agencies. The bulk of these appeals in- volve statutory interpretation, broadly construed, where the formal role of the Court is to assure consistency between administrative stat- utes and agency actions.' As the large literature and longstanding * Professor of Economics, University of California at Irvine. Professor Cohen worked on this project when she was the Olin Fellow in Law and Social Choice at the University ofSouth- ern California School of Law and the California Institute of Technology Division of Humanities and Social Sciences. Professor Cohen acknowledges the generous support of the Olin Founda- tion and the hospitality of both host institutions during the creation of this Article. ** Professor of Law and Social Science, California Institute of Technology; William T. Dalessi Professor of Law, University of Southern California School of Law. Research assistance was provided by Jennifer Gross, Albert Rabizadeh-Kashani, Robert Sturgeon, Steven J. Sweeney and Allyson Weisberg. 1. Under our definition of statutory interpretation, broadly construed, we include not only the traditional statutory interpretation cases, but also challenges to agency action on the ground that it is arbitrary or capricious and cases that involve such jurisdictional issues as stand- ing and reviewability. We exclude, however, other standards of review, such as the constitution- ality of statutes. Our sample is intended to include cases for which the legislative branch can amend the Court's decisions through the standard bicameral approach, so that the game we describe in Part II is a reasonable approximation. We recognize that variations, some important, exist in the model's applicability to the different cases included in our sample. For discussions of

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