Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Litigation

Article excerpt

While recent research has improved dramatically our understanding of appellate judicial behavior in constitutional and criminal law, we know comparatively little about the majority of the decisions made by the federal judiciary: civil case decisions in federal district courts. Moreover, by relying upon published cases exclusively, this research may misrepresent those forces influencing the majority of judicial decisions. We address these shortcomings by outlining an integrated model of judicial policymaking and using this model to explain civil penalty severity in all environmental protection cases (published and unpublished) concluded in federal district courts from 1974-91.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 surrounding political context, and federal institutional actors. These models also demonstrate that political considerations are especially influential in published case decisions.

Over the past quarter century, scholars have successfully uncovered many systematic factors underlying court decisions. The more we learn about judicial behavior, the more this behavior resembles that of other more traditional policymakers in the American political system. Upon reflection, this conclusion should not be surprising. Judicial decisions are policy decisions in that they allocate resources and values, and contribute significantly to the attainment of policy goals. While substantial bodies of evidence demonstrate that in arriving at their decisions judges consider traditional criteria (e.g., precedent and the facts of the case: Gibson 1978; Segal 1984; Emmert 1992), they also react to pressures from the surrounding socio-political environment (Cook 1977; Giles and Walker 1975; Kritzer 1978). Judges' responses to these stimuli, however, are conditioned by their own policy preferences (Hall and Brace 1996; Segal and Spaeth 1993), and the degree to which each of these elements figures into judicial decision-making is conditional upon the behavior of other institutional actors (Cook 1977; Epstein, Walker, and Dixon 1989).

Though there are exceptions (e.g., Hall and Brace 1992), both judicial politics and public policy scholars have been slow to recognize the potential inherent in these recent developments for building a comprehensive model of judicial policymaking. This oversight has led to several prominent gaps in our understanding of how judicial decisions affect routine policy activities-gaps we hope the present research will begin to fill. First, while decisions of the Supreme Court and federal appellate courts have received close attention, we know less about the decision-making processes and policy implications of decisions made by federal district courts. District court judges, more than their appellate court brethren, engage in the nuts and bolts of policymaking from formation through implementation. Moreover, in their roles as "fact finders," the cognitive processes behind the decisions of district court judges may also differ from those of appellate jurists (Rowland and Carp 1996). Second, the emphasis on criminal and constitutional law in most judicial behavior research overlooks the important policy contributions made by civil law in guiding implementation in regulation, social welfare, and other policy areas. These oversights are particularly troublesome given that increased caseloads, increased opportunities for judicial discretion, and reduced judicial deference to administrative decisions have thrust federal court judges into more prominent policymaking roles (Rowland and Carp 1996; Stewart 1975).

Finally, while the oversights identified above are not trivial, a more serious limitation of current research is the sampling frame within which models of judicial politics are operationalized. Almost without exception, scholars have tested hypotheses regarding judicial behavior by relying upon the available record of published case decisions. …


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