Judicial policymaking in published and unpublished decisions: The case of environmental civil litigation

While recent research has improved dramatically our understanding of appell ate judicial behavior in constitutional and criminal law, we know comparati vely little about the majority of the decisions made by the federal judicia ry: civil case decisions in federal district courts. Moreover, by relying u pon published cases exclusively, this research may misrepresent those force s influencing the majority of judicial decisions. We address these shortcom ings by outlining an integrated model of judicial policymaking and using th is model to explain civil penalty severity in all environmental :protection cases (published and unpublished) concluded in federal district courts fro m 1974-91. Additive and interactive heteroskedastic unit effect regression models demonstrate that penalty severity in environmental cases is affected by case and defendant characteristics, judicial policy preferences, the su rrounding political context. and federal institutional actors. These models also demonstrate that political considerations are especially influential in published case decisions.