Decision Costs and the Strategic Design of Administrative Process and Judicial Review

The ability of Congress to structure the institutional costs of agency and judicial decision making gives it considerable control over regulatory policy. We analyze the role of decision costs through models of agency‐court interaction and consider the ability of Congress to manipulate such costs for its own policy purposes. We explore the implications of these models by examining recent congressional efforts to change the decision cost structures of agencies and courts. In particular, we consider the so‐called Bumpers Amendments of the 1980s and, from the 1990s, the Republican‐proposed imposition of cost‐benefit analysis on agency decision making.