To prosecute or not to prosecute, that is the question: the Federal Trade Commission and Antitrust Division's antitrust enforcement dilemma under judicial uncertainty

This dissertation develops and empirically tests a theory of interaction between\nthe federal appellate courts and the bureaucracy with regard to bureaucratic prosecution.\nModeling the bureaucracy as a forward-looking and risk-averse institution and assuming\nthat there is no uncertainty at the district court level, I posit that institutional uncertainty\ncreated by appellate courts' random assignment of judges and cases affects the\nlikelihood of bureaucratic prosecution. Given that the decision from a specific panel of a\ncircuit court can be estimated by its median judge's policy position and that the\nbureaucracy does not know which panel will hear the case, there exists institutional\nuncertainty at the appellate court level in terms of ideological differences among panels\nrepresented by their median judges. I contend that increasing ideological heterogeneity\nwithin an appellate court measured by its ideological variance among judges increases\ninstitutional uncertainty with respect to the bureaucracy's policy position, which in turn\ndiscourages bureaucratic prosecution. My examination of the Antitrust Division's\nprosecution record from 1950 to 1994 demonstrates that ideological variance within the federal circuit courts has a significant impact on the likelihood of prosecution by the\nagency. The Antitrust Division is less likely to prosecute when facing a circuit court with\nlarge ideological variance among judges. Studies of judicial decision-making and\njudicial control of the bureaucracy have not fully examined the implication of appellate\ncourts' institutional practice of randomly assigning judges and cases. The development\nof ideological variance among circuit judges, in this project, as a measure of the\ninstitutional uncertainty created by the random assignment process suggests that the\ncourts' unique institutional practice can now be fully incorporated into future studies of\nthe interaction between the judiciary and the bureaucracy.