Measuring the Legislative Design of Judicial Review of Agency Actions

Abstract

When Congress writes and passes statutes, it can include detailed provisions designating how judicial review of agency actions will operate. Yet despite their importance, empirical research has suffered from a lack of a systematic measure or assessment of these review provisions. In this project, we create a new measure of exposure to judicial review by hand-coding judicial review provisions in the text of significant legislation from 1947 to 2016. We identify five categories of review provisions, including language that describes the reviewability of agency decisions, time limits for petitioning courts, the scope of review, court venue, and standing. Utilizing these attributes, we construct latent indexes of exposure to the judiciary, including law-specific and agency-specific versions of these indexes. We then examine the validity of these measures of agency exposure to judicial review by assessing their covariation with litigation, discretion, and independence. Our data create possibilities for future research on how Congress can strategically attempt to influence other branches as well as insight into interactions among the branches in a separation-of-powers system.