Measuring the Legislative Design of Judicial Review of Agency Actions.

The article focuses on developing a systematic and comprehensive measure of congressional design of judicial review provisions in statutes delegating authority to federal agencies from 1947 to 2016. By hand-coding significant legislation, the authors identify five categories of judicial review provisions—reviewability, time limits, venue, scope of review, and standing—and use a Bayesian latent variable model to create law-level and agency-level indexes of agency exposure to judicial review, including a dynamic measure accounting for temporal changes. Their findings reveal that Congress frequently includes such provisions, sometimes limiting or precluding judicial review contrary to prevailing scholarly assumptions, and that exposure to judicial review correlates positively with litigation frequency and inversely with agency discretion, while showing mixed relationships with agency independence. This new measure offers a valuable tool for empirical research on the strategic interactions among Congress, agencies, and courts within the U.S. separation-of-powers system.