Thursday, January 3, 2013
Patrick Luff (Arizona State) has posted Captured Legislatures and Public-Interested Courts to SSRN.
Public choice, the dominant paradigm of modern regulatory theory, argues that government activity provides benefits to small, organized interests at the expense of larger groups. In practice, this means that interest groups are often able to benefit themselves at the expense of the public good. This model has been extended to the courts, which are described as implicit or explicit actors in the wealth-transfer process. Applying public-choice theory to the courts, however, overlooks the structural differences between courts and the elected branches, as well as the insights of judicial decisionmaking theory. Not only do judges receive better and more complete information than the elected branches, but they also process that information differently than elected-branch officials, leading to more reliably public-interested results. This should cause us to rethink the countermajoritarian difficulty, and by extension, judicial restraint. The countermajoritarian difficulty is grounded in the presumption that legislatures enact the majority will, which courts disrupt through judicial review. Where courts act with the public interest in mind, and therefore implement the majority will, while the elected branches serve private interests, the case for judicial restraint based on the countermajoritarian nature of the courts is significantly undermined.