Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals

Yale Law Journal

Volumn 107, Issue 7, 1998, Pages 2155-2175

  Cross, Frank B ^a   Tiller, Emerson H ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

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EID: 0001220798     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797418     Document Type: Review

References (123)

1. The Supreme Court has declared that stare decisis "is a basic self-governing principle within the Judicial Branch." Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989).
2. See Kathleen M. Sullivan, The Supreme Court - 1991 Term, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 64-65 (1992) (reporting the traditional position that "[c]ourts are to stick to law, judgment, and reason in making their decisions and should leave politics, will, and value choice to others"). Archibald Cox refers to the "discipline of legal reasoning" as a means of "minimiz[ing] the danger of writing [Justices'] personal values and preferences" into their opinions. ARCHIBALD COX, THE COURT AND THE CONSTITUTION 70 (1987). David Shapiro contends that requiring judges to give reasons for their opinions serves "a vital function in constraining the judiciary's exercise of power." David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 737 (1987). Chief Judge Harry Edwards of the D.C. Circuit Court of Appeals states that "it is the law - and not the personal politics of individual judges - that controls judicial decision-making in most cases resolved by the court of appeals." Harry T. Edwards, Public Misperceptions Concerning the "Politics" of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. COLO. L. REV. 619, 620 (1985).
3. See Kathleen M. Sullivan, The Supreme Court - 1991 Term, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 64-65 (1992) (reporting the traditional position that "[c]ourts are to stick to law, judgment, and reason in making their decisions and should leave politics, will, and value choice to others"). Archibald Cox refers to the "discipline of legal reasoning" as a means of "minimiz[ing] the danger of writing [Justices'] personal values and preferences" into their opinions. ARCHIBALD COX, THE COURT AND THE CONSTITUTION 70 (1987). David Shapiro contends that requiring judges to give reasons for their opinions serves "a vital function in constraining the judiciary's exercise of power." David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 737 (1987). Chief Judge Harry Edwards of the D.C. Circuit Court of Appeals states that "it is the law - and not the personal politics of individual judges - that controls judicial decision-making in most cases resolved by the court of appeals." Harry T. Edwards, Public Misperceptions Concerning the "Politics" of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. COLO. L. REV. 619, 620 (1985).
4. See Kathleen M. Sullivan, The Supreme Court - 1991 Term, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 64-65 (1992) (reporting the traditional position that "[c]ourts are to stick to law, judgment, and reason in making their decisions and should leave politics, will, and value choice to others"). Archibald Cox refers to the "discipline of legal reasoning" as a means of "minimiz[ing] the danger of writing [Justices'] personal values and preferences" into their opinions. ARCHIBALD COX, THE COURT AND THE CONSTITUTION 70 (1987). David Shapiro contends that requiring judges to give reasons for their opinions serves "a vital function in constraining the judiciary's exercise of power." David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 737 (1987). Chief Judge Harry Edwards of the D.C. Circuit Court of Appeals states that "it is the law - and not the personal politics of individual judges - that controls judicial decision-making in most cases resolved by the court of appeals." Harry T. Edwards, Public Misperceptions Concerning the "Politics" of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. COLO. L. REV. 619, 620 (1985).
5. See sources cited infra Section II.B for legal scholarship discussing judicial obedience to doctrine in the context of administrative law. For studies on obedience within the judiciary, consider Richard L. Pacelle, Jr. & Lawrence Baum, Supreme Court Authority in the Judiciary, 20 AM. POL. Q. 169 (1992), which concludes through a study of cases remanded by the Supreme Court that lower courts tend to recognize high-court authority; and Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673 (1994), which reaches mixed conclusions regarding the effect of Supreme Court precedent on circuit court behavior.
6. See sources cited infra Section II.B for legal scholarship discussing judicial obedience to doctrine in the context of administrative law. For studies on obedience within the judiciary, consider Richard L. Pacelle, Jr. & Lawrence Baum, Supreme Court Authority in the Judiciary, 20 AM. POL. Q. 169 (1992), which concludes through a study of cases remanded by the Supreme Court that lower courts tend to recognize high-court authority; and Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673 (1994), which reaches mixed conclusions regarding the effect of Supreme Court precedent on circuit court behavior.
7. But see Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 DUKE L.J. 300, 303-07 (surveying a set of administrative law cases in the D.C. Circuit and concluding that the decisions are best explained by the policy predilections of individual judges and by whether a majority of the judges on a panel were appointed by a Republican or a Democratic president).
8. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 4 (1991) (reporting that legal scholars "ignore with impunity" the empirical research on political decisionmaking by judges); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 4 (1994) (discussing the reluctance of legal scholars to consider the empirical findings of political scientists). The assumption of the importance of doctrine in judicial decisions is so strong that some commentators have criticized the Supreme Court for paying too much attention to precedent in its decisions. See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 426-27 (1988) (criticizing reliance on precedent in statutory interpretation); William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (same).
9. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 4 (1991) (reporting that legal scholars "ignore with impunity" the empirical research on political decisionmaking by judges); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 4 (1994) (discussing the reluctance of legal scholars to consider the empirical findings of political scientists). The assumption of the importance of doctrine in judicial decisions is so strong that some commentators have criticized the Supreme Court for paying too much attention to precedent in its decisions. See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 426-27 (1988) (criticizing reliance on precedent in statutory interpretation); William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (same).
10. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 4 (1991) (reporting that legal scholars "ignore with impunity" the empirical research on political decisionmaking by judges); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 4 (1994) (discussing the reluctance of legal scholars to consider the empirical findings of political scientists). The assumption of the importance of doctrine in judicial decisions is so strong that some commentators have criticized the Supreme Court for paying too much attention to precedent in its decisions. See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 426-27 (1988) (criticizing reliance on precedent in statutory interpretation); William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (same).
11. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 4 (1991) (reporting that legal scholars "ignore with impunity" the empirical research on political decisionmaking by judges); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 4 (1994) (discussing the reluctance of legal scholars to consider the empirical findings of political scientists). The assumption of the importance of doctrine in judicial decisions is so strong that some commentators have criticized the Supreme Court for paying too much attention to precedent in its decisions. See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 426-27 (1988) (criticizing reliance on precedent in statutory interpretation); William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (same).
12. Among the most prominent presentations of this position is JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993), in which the authors claim that virtually all Supreme Court decisions are determined by the Justices' politics rather than the law. See id. at 72-73. The authors present considerable empirical evidence to this effect, showing that Justices' votes can be predicted based on their political attitudes as revealed in prior decisions. See id. at 255. As for decisions relying on precedent, the authors claim that "opinions containing such rules merely rationalize decisions; they are not the causes of them." Id. at 66. Such rationalization comes rather easily, as precedents are typically available on both sides of any case. See, e.g., Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199, 206 (1984) (presenting the Critical Legal Studies view that "[l]egal doctrine can be manipulated to justify an almost infinite spectrum of possible outcomes").
13. Among the most prominent presentations of this position is JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993), in which the authors claim that virtually all Supreme Court decisions are determined by the Justices' politics rather than the law. See id. at 72-73. The authors present considerable empirical evidence to this effect, showing that Justices' votes can be predicted based on their political attitudes as revealed in prior decisions. See id. at 255. As for decisions relying on precedent, the authors claim that "opinions containing such rules merely rationalize decisions; they are not the causes of them." Id. at 66. Such rationalization comes rather easily, as precedents are typically available on both sides of any case. See, e.g., Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199, 206 (1984) (presenting the Critical Legal Studies view that "[l]egal doctrine can be manipulated to justify an almost infinite spectrum of possible outcomes").
14. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
15. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
16. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
17. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
18. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
19. See, e.g., Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1095 (1987) (observing that "the Court's awareness [of] how infrequently it is able to review lower court decisions has led it to be tolerant, even approving, of lower court and party indiscipline in relation to existing law"). Several rational choice models of judicial review of agency decisionmaking have incorporated the notion that actors have limited resources and the derivative proposition that this creates discretion for agencies and lower courts. See Pablo T. Spiller, Agency Discretion Under Judicial Review, 16 MATHEMATICAL & COMPUTER MODELING 185 (1992) (modeling the role of decision costs in creating discretion for agencies); Pablo T. Spiller & Emerson H. Tiller, Decision Costs and the Strategic Design of Administrative Process and Judicial Review, 26 J. LEGAL STUD. 347 (1997) (discussing the ability of Congress to manipulate the resources of agencies and courts for purposes of achieving policies desired by Congress); Emerson H. Tiller, Controlling Policy by Controlling Process, 14 J.L. ECON. & ORG. 114 (1998) (modeling the ability of a court to manipulate agency resources to achieve a policy desired by the court); Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law (1997) (unpublished manuscript, on file with the Yale Law Journal) (testing empirically models of strategic choice by circuit courts); Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Politics and Decision Costs in Administrative and Judicial Process (1997) (unpublished manuscript, on file with the Yale Law Journal) (modeling the ability of agencies and courts strategically to select grounds upon which to base a decision in order to impose costs upon reviewing actors).
20. A leading political scientist and lawyer claims that the "evidence overwhelmingly supports the attitudinal model and, equally overwhelmingly, fails to support the legal model as an explanation of why the justices decide their cases as they do." Harold J. Spaeth, The Attitudinal Model, in CONTEMPLATING COURTS 296, 296 (Lee Epstein ed., 1995). He emphasizes that "the mere fact that a court cites precedent provides no evidence that precedent actually determines the outcome of the case." Id. at 302.
21. Perry suggests that political scientists show a "lack of appreciation of the nature of the courts, the law, and the legal system." PERRY, supra note 5, at 3.
22. See Donald R. Songer & Susan Haire, Integrating Alternative Approaches to the Study of Judicial Voting: Obscenity Cases in the U.S. Courts of Appeals, 36 AM. J. POL. SCI. 963, 967 (1992) (reporting that "scholars in the empirical tradition have given little systematic attention to the potential effect of variables that might reflect the traditional model").
23. Segal and Spaeth complain that the legal model cannot be objectively operationalized in an empirical study. See SEGAL & SPAETH, supra note 6, at 33-34. They have recently sought to test the legal model by examining whether Supreme Court Justices followed precedents from which they initially dissented. See Jeffrey A. Segal & Harold J. Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 AM. J. POL. SCI. 971 (1996). While they found that dissenters continued to dissent, notwithstanding the creation of the original precedent, see id. at 971, this finding hardly disproves the legal model. That model does not dictate that Justices must follow a precedent they believe to be contrary to the Constitution.
24. Segal and Spaeth complain that the legal model cannot be objectively operationalized in an empirical study. See SEGAL & SPAETH, supra note 6, at 33-34. They have recently sought to test the legal model by examining whether Supreme Court Justices followed precedents from which they initially dissented. See Jeffrey A. Segal & Harold J. Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 AM. J. POL. SCI. 971 (1996). While they found that dissenters continued to dissent, notwithstanding the creation of the original precedent, see id. at 971, this finding hardly disproves the legal model. That model does not dictate that Justices must follow a precedent they believe to be contrary to the Constitution.
25. In this circumstance, the legal and political models are mutually reinforcing.
26. This is the conventional legal model. For a discussion, see Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 255-63 (1997).
27. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (discussing how the Supreme Court's statutory interpretation decisions are restrained by the risk of being overridden by subsequent legislation); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1643-44 (1995) (claiming that lower courts restrain their rulings so as to avoid higher-court reversal). But cf. Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996) (illustrating how the Supreme Court may prod Congress into reversing one of its decisions to maximize the Court's doctrinal and policy preferences).
28. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (discussing how the Supreme Court's statutory interpretation decisions are restrained by the risk of being overridden by subsequent legislation); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1643-44 (1995) (claiming that lower courts restrain their rulings so as to avoid higher-court reversal). But cf. Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996) (illustrating how the Supreme Court may prod Congress into reversing one of its decisions to maximize the Court's doctrinal and policy preferences).
29. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (discussing how the Supreme Court's statutory interpretation decisions are restrained by the risk of being overridden by subsequent legislation); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1643-44 (1995) (claiming that lower courts restrain their rulings so as to avoid higher-court reversal). But cf. Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996) (illustrating how the Supreme Court may prod Congress into reversing one of its decisions to maximize the Court's doctrinal and policy preferences).
30. Even the behavioralist political scientists who maintain that judges are acting politically do not necessarily claim that these actions are consciously disobedient to legal doctrine. See C.K. Rowland, The Federal District Courts, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 61, 79 (John B. Gates & Charles A. Johnson eds., 1991) (observing that judges of different ideologies "will often see similar evidence differently, remember evidence that fits their relevant mental constructs more vividly and accurately than evidence that does not, and interpret ambiguous information in ways consistent with their schematic predilections"); see also Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1318-19 (1995) (indicating that "[m]any omissions of candor, after all, are not conscious ploys on the part of judges, but rather the product of either less-than-thorough or genuinely self-deceptive analysis").
31. Even the behavioralist political scientists who maintain that judges are acting politically do not necessarily claim that these actions are consciously disobedient to legal doctrine. See C.K. Rowland, The Federal District Courts, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 61, 79 (John B. Gates & Charles A. Johnson eds., 1991) (observing that judges of different ideologies "will often see similar evidence differently, remember evidence that fits their relevant mental constructs more vividly and accurately than evidence that does not, and interpret ambiguous information in ways consistent with their schematic predilections"); see also Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1318-19 (1995) (indicating that "[m]any omissions of candor, after all, are not conscious ploys on the part of judges, but rather the product of either less-than-thorough or genuinely self-deceptive analysis").
32. It is also possible that a lower court tried to apply the doctrine dutifully but misunderstood that doctrine as it was intended by the Supreme Court. We do not consider this a disobedience of doctrine in our analysis.
33. For an example of a case in which a minority judge (Democrat) chided the majority (Republicans) for not following doctrine, see Engine Manufacturers Ass'n v. EPA, 88 F.3d 1075 (D.C. Cir. 1996), which involved an industry association's challenge to an EPA rule where a Republican panel majority vacated one section of the regulation. The lone Democrat dissented, arguing that the Chevron doctrine, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), should have required approval of the entire rule. For the role of dissent more generally, consider a recent study on search-and-seizure cases suggesting that dissents are driven in part by the ideological preferences of judges. See Steven R. Van Winkle, Dissent as a Signal: Evidence from the U.S. Courts of Appeals (1997) (unpublished manuscript, on file with the Yale Law Journal) (finding dissents more likely to occur on a circuit court panel when the dissenter was of the same ideological position as the full circuit majority, thus suggesting a political whistleblowing effect).
34. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
35. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
36. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
37. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
38. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
39. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael
40. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
41. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
42. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
43. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
44. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
45. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
46. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
47. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
48. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
49. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
50. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
51. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without
52. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
53. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
54. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
55. The approach taken here is consistent with the recent law and positive political theory movement, which has addressed questions of constitutional law, federalism, administrative law, statutory interpretation, and judicial expansion through rational choice and institutional theory. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447 (1995) (analyzing the variance in Supreme Court federalism decisions through the insights of positive political theory); Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. CAL. L. REV. 431 (1996) (using insights of positive political theory to predict when the Supreme Court will manipulate administrative law); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992) (analyzing Article I, Section 7 of the U.S. Constitution through the lens of positive political theory as a "sequential game" consisting of interactions among the branches based on their individual preferences); William N. Eskridge, Jr. & John Ferejohn, Making the Deal Stick: Enforcing the Ordinal Constitutional Structure of Lawmaking in the Modern Regulatory State, 8 J.L. ECON & ORG. 165 (1992) (applying game-theoretical work in positive political theory to find a more systematic basis for evaluating Supreme Court constitutional decisions regarding the lawmaking functions of agencies); John M. de Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435 (1996) (using positive political theory to explain the expansion of the federal judiciary as a product of unified government); Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 265 (1990) (using positive political theory models to illustrate that "[t]he ability of other political actors . . . to reverse the Supreme Court . . . is what constrains the scope and power of the Court"); Matthew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987) (using positive political theory to examine how interest groups monitor agency compliance with congressional directives); Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989) (same); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, LAW & CONTEMP. PROBS., Winter 1994, at 3 (proposing the use of positive political theory as a descriptive model of the legislative process to clarify statutory intent); McNollgast, supra note 14, at 1631 (using positive political theory to explain adherence to doctrine and court packing); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO L.J. 705 (1992) (advocating the use of positive political theory to attain a clearer understanding of statutory intent); Terry M. Moe, Political Institutions: The Neglected Side of the Story, J.L. ECON. & ORG., Special Issue 1990, at 213, 230 (using institutional theory to explain how administrative procedure is traded for substance in a way that "public agencies will tend to be structured in part by their enemies - who want them to fail"); Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180 (1994) (considering the role of the President in regulatory reform through an analysis informed by positive political theory); Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992) (using positive political theory to analyze the conditions under which the Supreme Court may impose its policy preferences on the Constitution without risking being overruled by constitutional amendment); Pablo T. Spiller & Matthew L. Spitzer, Judicial Choice of Legal Doctrines, 8 J.L. ECON. & ORG. 8 (1992) (using positive political theory to suggest why the Supreme Court will use constitutional rather than statutory interpretation in a strategic game with Congress). For some comments on and criticisms of these various approaches, see Linda R. Cohen, Politics and the Courts: A Comment on McNollgast, 68 S. CAL. L. REV. 1685 (1995); Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs.
56. 467 U.S. 837 (1984).
57. See Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982), rev'd sub nom. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
58. Chevron, 467 U.S. at 842.
59. See id. at 862.
60. See id. at 843-44. Reasonableness in the Chevron case was found in part because of the agency's need to reconcile "conflicting policies." Id. at 865.
61. See Laurence H. Silberman, Chevron - The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 827 (1990); see also 5 U.S.C. § 706 (1994).
62. See Laurence H. Silberman, Chevron - The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 827 (1990); see also 5 U.S.C. § 706 (1994).
63. See Chevron, 467 U.S. at 842-43.
64. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 991; see also Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1051 (1995) (reporting that "[a]dministrative law scholars, whether they agreed or disagreed with the Court's standards, assumed that [Chevron and Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)] were landmark decisions that signaled a turning point in the substantive review of agency decisions").
65. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 991; see also Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1051 (1995) (reporting that "[a]dministrative law scholars, whether they agreed or disagreed with the Court's standards, assumed that [Chevron and Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)] were landmark decisions that signaled a turning point in the substantive review of agency decisions").
66. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 456 (1989).
67. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 84 (1994).
68. 1 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 3.2, at 110 (3ded. 1994).
69. 5 U.S. (1 Cranch) 137 (1803).
70. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2075 (1990).
71. See, e.g., Cornell W. Clayton, Separate Branches - Separate Politics: Judicial Enforcement of Congressional Intent, 109 POL. SCI. Q. 843, 871 (1994-1995) (arguing that the Chevron approach "should cause great concern for those committed to the rule of law"); see also Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 189 (1992) (noting that "[i]ts detractors portray Chevron as . . . abandon[ing] to administrative agencies the judicial authority and obligation to 'say what the law is'").
72. See, e.g., Cornell W. Clayton, Separate Branches - Separate Politics: Judicial Enforcement of Congressional Intent, 109 POL. SCI. Q. 843, 871 (1994-1995) (arguing that the Chevron approach "should cause great concern for those committed to the rule of law"); see also Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 189 (1992) (noting that "[i]ts detractors portray Chevron as . . . abandon[ing] to administrative agencies the judicial authority and obligation to 'say what the law is'").
73. See, e.g., Farina, supra note 27, at 498 (claiming that if "Congress chooses to delegate regulatory authority to agencies, part of the price of delegation may be that the court, not the agency, must hold the power to say what the statute means"); Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 123 (1994) (explaining that when the President executes a law that is "vague or silent on a key issue . . . the resulting rule - from either rulemaking or adjudication - is a policy choice in much the same way that statutes are policy choices").
74. See, e.g., Farina, supra note 27, at 498 (claiming that if "Congress chooses to delegate regulatory authority to agencies, part of the price of delegation may be that the court, not the agency, must hold the power to say what the statute means"); Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 123 (1994) (explaining that when the President executes a law that is "vague or silent on a key issue . . . the resulting rule - from either rulemaking or adjudication - is a policy choice in much the same way that statutes are policy choices").
75. See Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 AM. U. L. REV. 295, 296 (1987).
76. See Seidenfeld, supra note 28, at 104-11.
77. See, e.g., Maureen B. Callahan, Must Federal Courts Defer to Agency Interpretations of Statutes?: A New Doctrinal Basis for Chevron U.S.A. v. Natural Resources Defense Council, 1991 WIS. L. REV. 1275, 1289; Richard J. Pierce, Jr., Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481, 484-87 (1990).
78. See, e.g., Maureen B. Callahan, Must Federal Courts Defer to Agency Interpretations of Statutes?: A New Doctrinal Basis for Chevron U.S.A. v. Natural Resources Defense Council, 1991 WIS. L. REV. 1275, 1289; Richard J. Pierce, Jr., Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481, 484-87 (1990).
79. Seidenfeld, supra note 28, at 116.
80. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986); John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 311 (1990); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 122 (1994); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 519.
81. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986); John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 311 (1990); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 122 (1994); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 519.
82. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986); John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 311 (1990); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 122 (1994); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 519.
83. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986); John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 311 (1990); Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 122 (1994); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 519.
84. From our sample of cases, consider American Petroleum Institute v. EPA, 52 F.3d 1113 (D.C. Cir. 1995), in which the majority decided not to engage in Chevron deference but instead used Chevron as authority for not deferring. In that case, petitioners, a group of petroleum manufacturers and refiners, challenged an EPA rule in which the EPA had broadly interpreted its power under various environmental statutes to mandate the use of renewable oxygenates in its regulations for the reformulated gasoline program under the Clean Air Act, 42 U.S.C. §§ 7401-7671 (1994). The three-judge panel, all Republican appointees, ruled against the EPA and held for the petroleum trade associations. See American Petroleum Inst., 52 F.3d at 1115. Relying on the "plain meaning" of the statute, the panel stated that the statute was quite clear about what the EPA could consider in promulgating the rule and that the EPA had overstepped the boundaries of the statute. The panel made this finding in spite of statutory language stating that the agency could consider impacts on cost, energy requirements, and other health and environmental impacts and that the EPA had the authority to promulgate such regulations as are necessary for it to carry out its functions under the Act. See 42 U.S.C. §§ 7545(k)(1), 7601(a)(1). Moreover, the statute did not explicitly limit those regulations to implementing emission or other particular standards. See 42 U.S.C. § 7545(k)(1). The panel, nonetheless, chose against deference, stating that "step one" of the Chevron test dictated the outcome. American Petroleum Inst., 52 F.3d at 1119.
85. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992).
86. See Shapiro & Levy, supra note 26, at 1069-70 (claiming that the Chevron doctrine is indeterminate and allows for an open-ended interpretation of its meaning by lower courts).
87. Richard J. Pierce, Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301, 302 (1988). Pierce has subsequently suggested that the effect of Chevron has dissipated somewhat over time. See Richard J. Pierce, Jr., Legislative Reform of Judicial Review of Agency Actions, 44 DUKE L.J. 1110, 1112 (1995) [hereinafter Pierce, Legislative Reform]. Nonetheless, he believes that the "Chevron test has largely realized its potential at the circuit court level." Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 749 (1995).
88. Richard J. Pierce, Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301, 302 (1988). Pierce has subsequently suggested that the effect of Chevron has dissipated somewhat over time. See Richard J. Pierce, Jr., Legislative Reform of Judicial Review of Agency Actions, 44 DUKE L.J. 1110, 1112 (1995) [hereinafter Pierce, Legislative Reform]. Nonetheless, he believes that the "Chevron test has largely realized its potential at the circuit court level." Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 749 (1995).
89. Richard J. Pierce, Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301, 302 (1988). Pierce has subsequently suggested that the effect of Chevron has dissipated somewhat over time. See Richard J. Pierce, Jr., Legislative Reform of Judicial Review of Agency Actions, 44 DUKE L.J. 1110, 1112 (1995) [hereinafter Pierce, Legislative Reform]. Nonetheless, he believes that the "Chevron test has largely realized its potential at the circuit court level." Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 749 (1995).
90. For a rare exception, see Russell L. Weaver, Some Realism About Chevron, 58 MO. L. REV. 129, 130 (1993).
91. Pierce, Legislative Reform, supra note 42, at 1123. Pierce focused this criticism on the Supreme Court's, rather than the appellate courts', application of Chevron.
92. A third study considered the Supreme Court's use of its Chevron precedent. See Merrill, supra note 40.
93. See Schuck & Elliott, supra note 26.
94. Id. at 1026.
95. Id.
96. The authors note that strong law skeptics would claim that "doctrinal changes such as Chevron should not affect the pattern of results reached in subsequent cases by lower courts, provided that the judges' personal and political predilections remain essentially unchanged during the period under study." Id. at 1029.
97. See id. at 1030, 1033.
98. See id. at 1038.
99. Id. Schuck and Elliott conceded, however, that the results may be attributable to "the passage of time, other changes in legal doctrine, the changing composition of the judiciary, or some other confounding factor." Id.
100. See Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65.
101. Id. at 90.
102. Id. at 91.
103. See id.
104. Id. at 103. One problem recognized by the authors was that their database "included all administrative decisions, rather than just those that addressed statutory interpretation cases." Id.
105. See id. at 105.
106. Seidenfeld, supra note 28, at 84 n.5.
107. See Shapiro & Levy, supra note 26, at 1070-71.
108. See id. This conclusion is somewhat uncertain, as it depends on comparing data from the Schuck-Elliott study with data from the Cohen-Spitzer study, even though the two studies used somewhat different sources of data.
109. See id. at 1053.
110. This coding required some subjective judgment, as administrative law cases commonly raise a variety of discrete issues. If the court upheld the challenge to agency action in any substantial part and granted the challenger a significant measure of the relief sought, the case was coded as upholding the challenge. In a handful of cases where the court deferred on statutory interpretation, yet reversed on other grounds, the case was coded as upholding the challenge.
111. See Cross, supra note 13, at 290-91.
112. We also include this variable to offset any bias to measuring POLICY CONVERGENCE that may result from the presence of a large number of Republican panels in the sample.
113. The impact is computed by subtracting the probability of deference when POLICY CONVERGENCE equals 0 from the probability of deference when the variable equals 1. See generally TIM FUTING LIAO, INTERPRETING PROBABILITY MODELS: LOGIT, PROBIT, AND OTHER GENERALIZED LINEAR MODELS (Sage Univ. Papers Series, Quantitative Applications in the Social Sciences No. 07-101, 1994).
114. This column indicates the whistleblowing scenario.
115. For purposes of symmetry, we also tested cases in which it was in the policy interest of the split-panel majority to apply doctrine (that is, policy convergence existed). We looked at the inverse of the whistleblower situation in particular - that is, we wanted to know if the presence of a divided panel (regardless of policy convergence between the agency and the court) meant there would be a significant change in the level of Chevron deference. This would suggest that majorities merely capitulate on occasion to minorities, not that the threat of exposure causes majorities to defy Chevron. A chi-square test suggested that our whistleblower theory remained intact. There was no significant difference (p = 0.36) between a divided panel and a unified panel in following doctrine when the application of Chevron would appear to advance policy interests of the majority.
116. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 179-82 (2d ed. 1991) (suggesting that individual judges can influence the panel majority by threatening to go public with a dissent).
117. See Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. LEGAL STUD. 129, 137 (1980) (concluding based on a study "that, if constraints operate on judges, these constraints must come from sources other than possibilities of reversal"); Strauss, supra note 7, at 1096 (noting the Supreme Court's limited power of supervision).
118. See Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. LEGAL STUD. 129, 137 (1980) (concluding based on a study "that, if constraints operate on judges, these constraints must come from sources other than possibilities of reversal"); Strauss, supra note 7, at 1096 (noting the Supreme Court's limited power of supervision).
119. Two political scientists who generally subscribe to an attitudinal model of decisionmaking acknowledge that most judges "can be swayed by an articulate and well-reasoned argument from a colleague with a differing opinion." CARP & STIDHAM, supra note 69, at 176.
120. See C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS (1996).
121. Id. at 171.
122. Judge Sentelle became well known when, shortly after lunching with Senators Jesse Helms and Lauch Faircloth of North Carolina, he replaced Whitewater special prosecutor Robert Fiske with the presumably more aggressive Kenneth Starr. See Sara Fritz, Starr Mixes Ambition, Judicious Style, L.A. TIMES, Jan. 27, 1996, at A1. The press has described Sentelle as one of the "most conservative members" of the D.C. Circuit. E.g., Nancy Lewis, Conviction of Drug Gang Leader Upheld, WASH. POST, Apr. 29, 1995, at A18.
123. Judge Sentelle became well known when, shortly after lunching with Senators Jesse Helms and Lauch Faircloth of North Carolina, he replaced Whitewater special prosecutor Robert Fiske with the presumably more aggressive Kenneth Starr. See Sara Fritz, Starr Mixes Ambition, Judicious Style, L.A. TIMES, Jan. 27, 1996, at A1. The press has described Sentelle as one of the "most conservative members" of the D.C. Circuit. E.g., Nancy Lewis, Conviction of Drug Gang Leader Upheld, WASH. POST, Apr. 29, 1995, at A18.