CAPTURED LEGISLATURES AND PUBLIC-INTERESTED COURTS

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 publicinterested 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.