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Strategic Instruments: Legal Structure and Political Games in Administrative Law


  • Tiller, Emerson H
  • Spiller, Pablo T


This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows actors to insulate their policy choices from higher level review. The theory is based on the notion that decision instruments (for example, rulemaking and adjudication for agencies, statutory interpretation and reasoning process review for courts) pose differential costs and payoffs for both the initiating and reviewing actors, each of whom have resource constraints. Because the initiating actor has the choice among instruments to make a decision (and to which a higher level reviewing actor is tied), the initiating actor can manipulate decision costs in a strategic fashion (choosing high-cost instruments to discourage higher level review, in particular). This article adds new insight into how judges and agencies engage in strategic decision making. Copyright 1999 by Oxford University Press.

Suggested Citation

  • Tiller, Emerson H & Spiller, Pablo T, 1999. "Strategic Instruments: Legal Structure and Political Games in Administrative Law," Journal of Law, Economics, and Organization, Oxford University Press, vol. 15(2), pages 349-377, July.
  • Handle: RePEc:oup:jleorg:v:15:y:1999:i:2:p:349-77

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    Cited by:

    1. Pablo T Spiller & Rafael Gely, 2007. "Strategic Judicial Decision Making," Levine's Working Paper Archive 122247000000001409, David K. Levine.
    2. Emerson H. Tiller, 2015. "The Law and Positive Political Theory of Panel Effects," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 35-58.
    3. John M. de Figueiredo, 2009. "Integrated Political Strategy," NBER Working Papers 15053, National Bureau of Economic Research, Inc.
    4. Marcel Boyer & Donatella Porrini, 2004. "Modelling the choice between regulation and liability in terms of social welfare," Canadian Journal of Economics, Canadian Economics Association, vol. 37(3), pages 590-612, August.
    5. Michael Abramowicz & Emerson H. Tiller, 2009. "Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making," The Journal of Legal Studies, University of Chicago Press, vol. 38(2), pages 419-443, June.
    6. Holburn, Guy L.F., 2012. "Assessing and managing regulatory risk in renewable energy: Contrasts between Canada and the United States," Energy Policy, Elsevier, vol. 45(C), pages 654-665.

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