Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Ligaton

Abstract

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and using this model to explain civil penalty severity in all environmental protection cases (published and unpublished) concluded in federal district courts from 1974-91.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.