CONTROLLING POLICY BY CONTROLLING PROCESS - JUDICIAL INFLUENCE ON REGULATORY DECISION-MAKING

In this article, the ability of a federal appellate court to control a gency policy by imposing process requirements upon the agency is analy zed under two administrative law regimes: the deference doctrine, wher e appellate courts are strictly limited in their ability to interfere with agency decision making, and the nondeference doctrine, where cour ts have greater reign in scrutinizing agency decision making. The emph asis on the judiciary's ability to affect regulatory process complemen ts earlier scholarship in positive political theory that focused mainl y on Congress' ability to use administrative process to control agency behavior. A model of judicial control is developed to allow for compa rative statics considering different legal doctrines, shifting agency and judicial preferences, and changing agency resources. An examinatio n of the Federal Energy Regulatory Commission and the D.C. Circuit Cou rt of Appeals' battle over the deregulation of oil pipelines is undert aken to illustrate the insights of the model. Further evidence bearing on the model is also reviewed.