Strategic plaintiffs and ideological judges in telecommunications litigation

This article examines the effect of judicial ideology on the selection and outcome of telecommunications regulatory cases. Using a dataset of Federal Communications Commission orders and trials from 1990 to 1995, this article shows that changes in the makeup of the bench of the D.C. Circuit Court of Appeals affects not only who wins cases, but also the cases selected for litigation. Firms are more likely to bring cases when the agency decisions are ideologically distant from the bench than when the two actors are ideologically close. Randomly selected judges vote ideologically as the firms' actions predict they will, with Republican judges overturning Democratic agency decisions, and vice versa. Finally, the article provides initial evidence that regulatory uncertainty may lead to more litigation.