Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation

This paper examines the effect of judicial of ideology on the selection and outcome of telecommunications regulatory cases. Using a dataset on Federal Communications Commission orders and trials from 1990 to 1995, this paper shows that changes in the make-up of the bench of the D.C. Circuit Court of Appeals affects not only who wins the cases, but also the cases selected for litigation. Specifically, firms are more likely to bring cases when the agency decisions are ideologically distant from the bench than when the two are actors are close ideologically. Judges, who are subsequently randomly selected, vote ideologically as the firms’ actions predict they will, with Republicans judges overturning Democratic agency decisions and vice versa. The effect of judicial ideology on case selection is much larger than the effect of judicial ideology on case outcomes. Additionally the paper also shows that plaintiff characteristics have little impact in determining case outcomes, but a statistically significant impact on cases selected for litigation. Finally, the paper provides initial results that regulatory uncertainty may lead to more litigation. * I would like to thank seminar participants at the University of Chicago, Harvard University, Stanford University, MIT, University of Pennsylvania, Northwestern University, Berkeley, Emory University, and APSA for very helpful comments. 1 STRATEGIC PLAINTIFFS AND IDEOLOGICAL JUDGES IN TELECOMMUNICATIONS LITIGATION