To Prosecute or Not to Prosecute, That is the Question: Agency Litigation under the Influence of Appellate Courts

    Authors

    Q. Li

    Comments

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    Abbreviated Journal Title

    Can. J. Polit. Sci.-Rev. Can. Sci. Polit.

    Keywords

    SUPREME-COURT; OF-APPEALS; US-COURTS; DECISIONS; POLICY; PREFERENCES; ANTITRUST; POLITICS; FLUIDITY; JUSTICES; Political Science

    Abstract

    This article examines how institutional uncertainty within the US federal circuit courts influences regulatory agencies' enforcement choices of prosecution or non-prosecution. I argue that the circuits' random assignment of judges and cases creates institutional uncertainty in terms of variation in each circuit's possible rulings with respect to the bureaucracy's policy position. This, in turn, affects agencies' probability of prosecution because the high degree of uncertainty will discourage prosecution, given its cost. In other words, agencies reduce their exposure to judicial review by avoiding prosecution. I use ideological variance within the circuits as a proxy for measuring the circuit courts' internal group dynamics. Large ideological variance indicates high institutional uncertainty and consequently leads to fewer numbers of prosecutions by the bureaucracy. The empirical results based on the prosecution record of the Antitrust Division of the Department of Justice from 1950 to 1994 strongly support the theory.

    Journal Title

    Canadian Journal of Political Science-Revue Canadienne De Science Politique

    Volume

    45

    Issue/Number

    1

    Publication Date

    1-1-2012

    Document Type

    Article

    Language

    English

    First Page

    185

    Last Page

    205

    WOS Identifier

    WOS:000304330000008

    ISSN

    0008-4239

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