Essays on Regulatory Litigation

Abstract

This dissertation examines litigation against federal agencies in the United States, an important part of American policymaking that is understudied. I examine this phenomenon from three angles: what leads to regulatory challenges, how agencies react, and what happens to disputes in the courts. In my first paper I focus on challenges to federal regulations by state attorneys general (AGs). I show how AGs challenge the federal government to help themselves politically. AGs are more likely to challenge when the president is from the other party, in an election year, and when the president is less popular in their state. They are also more likely to challenge when the AG and governor are from opposite parties, suggesting that AGs seek not just re-election but promotion to higher office. Importantly, AGs are less likely to win challenges to regulations published in election years, suggesting it is the creation of the dispute that is useful, not the outcome. In my second paper, I examine how litigation affects agency decision making, focusing on pharmaceutical approvals by the Food and Drug Administration (FDA). I model a process of drug approval in which a drug sponsor can challenge a rejected application. I show how the probability that a drug application is litigated relates to the costs of experimentation and submission. In the final paper, coauthored with Allison Halter, we examine the highest level at which disputes can be adjudicated: the United States Supreme Court. It is commonly suggested that justices write dissents to introduce ideas that can influence future law. We theorize how this might operate and test the implications on the full text of opinions and dissents since 1949. The predicted relationships do not hold, suggesting the conventional wisdom may need to be updated. Taken together, my dissertation shows that theories of policymaking in the United States are incomplete without considering the possibilities and realities of litigation.