Lobbying Judges Motivated by Countermajoritarian Concerns
New York University School of Law
August 17, 2010
The present paper develops a dynamic model of judicial decision-making where judges are assumed to be influenced by counter-majoritarian concerns. The analysis yielded two important insights. First, insofar as the policy standard can be interpreted as a constitutional standard, our analysis suggests that original constitutional intent is unlikely to be important in the long-run. Second, the present paper suggests an important distinction between judicial deference and judicial diversity not made in the existing separation-of-powers literature. In particular, where the judiciary becomes less deferential to the statutory interpretations of other institutions, we find that elected political actors respond, strategically, by announcing policy platforms designed to curb the lesser judicial deference; that is, politicians announce policy platforms that perfectly offset the lesser judicial deference. Increased judicial diversity is different. It has a real impact on the steady-state policy standard that operates through judicial lobbying. A more diverse judiciary leads to more lobbying, which, in turn, impacts the evolution of the prevailing policy standard over time. Although the increased effort exerted on judicial lobbying reduces resources available for valued consumption and increases uncertainty with respect to judicial outcomes, as the foregoing analysis will reveal, it also has the potential to act as a social-welfare-increasing constraint on a suboptimally-biased political process.
Number of Pages in PDF File: 36
Keywords: Countermajoritarian Difficulty, Statutory Interpretation, Judicial Deference, Judicial Diversity, Lobbying, Dynamic Analysis
JEL Classification: C61, D72, D74, D78, H77, P16working papers series
Date posted: August 20, 2010
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