Captured Legislatures and Public-Interested Courts

45 Pages Posted: 1 Jan 2013 Last revised: 22 Aug 2013

Patrick Luff

Luff Law Firm, PLLC; University of Oxford - Faculty of Law

Date Written: December 31, 2012

Abstract

According to public choice, the predominant paradigm of modern regulatory theory, legislative 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 the federal judiciary and Congress, as well as the insights of judicial decisionmaking theory. Not only do judges receive better and more complete information than legislators, but they also process that information differently, 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 Congress enacts 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 legislature serves private interests, the case for judicial restraint based on the countermajoritarian nature of the courts is significantly undermined.

Suggested Citation

Luff, Patrick, Captured Legislatures and Public-Interested Courts (December 31, 2012). Available at SSRN: https://ssrn.com/abstract=2195169 or http://dx.doi.org/10.2139/ssrn.2195169

Patrick A. Luff (Contact Author)

Luff Law Firm, PLLC ( email )

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HOME PAGE: http://www.lufflaw.com

University of Oxford - Faculty of Law ( email )

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