Super-Groups: Legal Empowerment and "Public Law"

Abstract

Not all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions who use their stategiven influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to "capture." At the same time, progressives dispute that such capture concerns are serious enough to counsel against otherwise needed reforms, celebrate salutary uses of legal empowerment of marginalized groups as a counterweight to subordination, and ignore counterexamples of legal empowerment gone wrong. 

Overlooked in this often-unsatisfying debate about how to think about laws that empower groups in public law has been the question how to think about groups that law empowers. This Article traces, problematizes, and begins to address that gap. It argues that legal scholars should differentiate ordinary interest groups from legally empowered super-groups and recognize super-groups as quasi-constitutional actors whose creation, composition, and behavior is an appropriate and indispensable site of democratic contestation and constitutional design. 

Distinguishing super-groups carries important theoretical advantages. Doing so offers a richer understanding of democratic constitutionalism; inverts the conceptual relationship between substantive fields like criminal law or health law and "public law" fields like constitutional law; raises the possibility of creating super-groups as a more-inclusive and flexible substitute to constitutional rights for entrenching priorities against majority will; offers a deeper understanding of one driver of inequity in the "New Gilded Age"; and provides a framework for confronting prevailing power as a promising front for advancing political equality that patches a hole in Brandeisian antitrust.  Finally, the Article shows through a case study of the American Medical Association's capture of Medicare reimbursement policy that it is possible to develop actionable prescriptions by naming and problematizing super-groups.

Keywords: public law, constitutional theory, institutional design, regulation, law and politics, law and political economy, institutions, health law, democracy