Invisible Lawmaking

16 Pages Posted: 4 Oct 2012 Last revised: 8 Jan 2013

Date Written: October 3, 2012


Private lawmaking is an ordinary rent-seeking activity of interest groups: the pursuit of self-interest through regulation. Familiar examples of private lawmakers include the National Rifle Association (NRA), the American Legislative Exchange Council (ALEC), and the National Motion Picture Association of America (MPAA). Motivated private lawmakers take advantage of imperfections in the marketplace of ideas and utilize such imperfections to obscure their visibility. The U.S. Supreme Court’s “marketplace of ideas” theory denies market imperfections and presumes prefect competition in the marketplace. This presumption rests on the Court’s firm premise that the pursuit of self-interest necessarily serves the public. Resting on this unqualified confidence in the pursuit in self-interest, in Citizens United, the Supreme Court has empowered interest groups, strengthening their influence over public lawmakers. This Essay presents how the Supreme Court’s confidence in the inherent value of the pursuit of self-interest has weakened democratic institutions, arming interest groups with effective means to draft the law of the land, while circumventing the public discourse and shortcutting open debates.

Keywords: Private Lawmaking, Rent Seeking, Citizens United, Marketplace of Ideas, Regulation

Suggested Citation

Orbach, Barak, Invisible Lawmaking (October 3, 2012). 79 University of Chicago Law Review 1 (2012), Arizona Legal Studies Discussion Paper No. 12-32, Available at SSRN:

Barak Orbach (Contact Author)

University of Arizona ( email )

1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)

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