Specialized Courts of Appeals' Review of Bureaucratic Actions and the Politics of Protectionism

By Unah, Isaac | Political Research Quarterly, December 1997 | Go to article overview

Specialized Courts of Appeals' Review of Bureaucratic Actions and the Politics of Protectionism


Unah, Isaac, Political Research Quarterly


Specialized courts are historically thought to serve only policy-neutral objectives. In the research presented here, I reexamine this widespread belief. The article analyzes the interaction between the Court of Appeals for the Federal Circuit, a specialized circuit court, and bureaucratic agencies to attempt to determine the Court's impact on U.S. trade policy outcomes. Using dumping and foreign government subsidization cases brought to court in the 1980s, I develop and test an attribute model of judicial protectionism, encapsulating economic, political, and contextual legal circumstances surrounding international trade cases. The most notable findings are that the Federal Circuit shows a significant proclivity toward protecting U.S. industries against unfair trade practices of foreign competitors, suggesting that, contrary to previous thinking, specialized courts have far more than policy-neutral effects. Also, the International Trade Commission performs remarkably better in court than does the Department of Commerce due to the Commission's courtlike decisional strategy and independent political status. Finally, my model offers strong support for both political and case-related explanations of regulatory activity showing, e.g., that industry political power and organizational ability condition trade judges' decisions to dispense regulatory protection.

An important phase in the history of the federal judiciary deals with the movement for the establishment of tribunals whose business was to be limited to litigation arising from a restricted field of legislative control.

Felix Frankfurter and James M. Landis (1928: 147)

A substantial body of scholarship concludes that courts play an increasingly important role in policy implementation and that judges do have significant substantive impact on policy outcomes (Halpern and Lamb 1982; Melnick 1983; Shapiro 1968; Smith 1993). While supporters of the policymaking process have applauded the active role of courts in checking bureaucratic power and discretion and in effectuating agency decisions in accordance with the Administrative Procedures Act (Mashaw 1985: 81-100; Ferejohn and Shipan 1990), critics have raised concerns that judges lack the expertise to question bureaucratic policy choices. They maintain that judges should limit their review of agency actions to procedural and doctrinal matters and leave issues of substantive policy to bureaucrats (Horowitz 1977: 34-36; Ely 1980: 132-34; Elhauge 1991; Meier 1993: 164-67; Glazer 1975).

But our ability to discuss these concerns fully is greatly hampered by the fact that empirical scholarship on judicial review of agency actions has focused disproportionately on the Supreme Court and to a lesser extent on other generalist courts such as the District of Columbia circuit and the numbered circuit courts. These courts have unlimited policy jurisdiction and their jurists possess no structured substantive expertise in any particular policy arena. As the introductory quotation would suggest, the development of specialized tribunals in the U.S. to exercise control over specific subject matters is one of the most important developments in the history of the judicial branch. Yet in American society most citizens, even many social scientists, continue to think of all courts as being generalist. Indeed, specialized courts with expertise in specific subject matters abound. Regrettably, due to the paucity of research into the contributions of these types of courts, our general understanding of the role of courts in the policy process is truly limited, needing much more texture and refinement.

In the research presented here, I focus on the Court of Appeals for the Federal Circuit (hereafter Federal Circuit), a specialized court with exclusive appellate jurisdiction over a limited number of subject-matter areas, including U.S. international trade, patent and trademark, customs regulations, federal claims, veterans affairs, and official discrimination against Senate employees and presidential appointees.

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