Ruling by Repute: Agency Reputation on Judicial Affirmance of Agency Action

Elizabeth Guo

Abstract

Courts rely on legal doctrine to decide cases, but attitudinal factors influence judicial review. Although agency reputation is not an explicit part of legal doctrine, judges have noted that agency reputation may have a subconscious hold on courts when deciding whether to rule in an agency’s favor. To date, however, little empirical literature exists on actual differences in agency reputation or on how agency reputation may affect legal challenges to agency action.

This Article seeks to fill that empirical gap. This Article develops a series of tests to determine whether and how agency reputation affects judicial outcomes. Using data from the U.S. Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA), the Article presents evidence that reputation before the judiciary differs between agencies. Courts view agencies differently regardless of whether a court decides to validate or invalidate agency action in a particular case. The evidence also suggests that an agency’s long-term reputation is positively correlated with judicial validation rates; better reputations are associated with better judicial outcomes for an agency. This Article presents suggestive evidence that the relationship between agency reputation and judicial outcomes does not affect the frequency of judicial action.

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