Does Interest Group Theory Justify More Intrusive Judicial Review?

By Elhauge, Einer R. | The Yale Law Journal, October 1991 | Go to article overview

Does Interest Group Theory Justify More Intrusive Judicial Review?


Elhauge, Einer R., The Yale Law Journal


                              Contents
Introduction                                                          32

I. Interest Group Theory and the Proposals to Change Judicial

     Review                                                           35
     A. Interest Group Theory                                         35
     B. The Proposals to Change Judicial Review                       44

II. Interest Group Theory Cannot Demonstrate Process Defects

     Independent of Normative Conclusions About the Outcomes          48
     A. The Dependence on a Normative Baseline                        49

B. The Implications for Justifying Expanded Judicial

Review 59

III. Interest Group Theory Does Not Demonstrate that the

Litigation Process Is Less Defective than the Political

     Process                                                          66
     A. The "Evolutionary" Common Law Process                         68
     B. Class Actions                                                 72
     C. Adversarial Structure                                         77
     D. Political Insulation                                          80
        1. Interest Group Influence Over Judicial Appointments        81
        2. Interest Group Theory Does Not Show Political
           Insulation Is Desirable                                    83

IV. Interest Group Theory Does Not Demonstrate That More

Intrusive Judicial Review Will Desirably Increase the

     Transaction Costs of Legal Change                                87
     A. Two Obstacles?                                                88

B. Increasing Transaction Costs Can Encourage Interest

Group Activity 89

C. Increasing Transaction Costs Can Increase the Relative

        Advantage of Interest Groups                                  92
     D. Discouraging All Legal Change                                 93
        1. Are the Laws Embodied in the Status Quo Preferable to
           Likely Legal Changes?                                      93
        2. Does the Status Quo Embody a Private Ordering Preferable
           to Likely Legal Changes?                                   94

V. Decision Theory Does Not Justify More Intrusive

     Judicial Review Either                                           101
  Conclusion                                                          109

Introduction

The last few decades have seen an outpouring of literature by economists and political scientists modelling, describing, and analyzing interest group influence over governmental decisionmaking.(1) According to this literature, the government cannot be trusted to regulate in the public interest. Legislators are disproportionately influenced by organized interest groups and thus enact legislation enabling those groups to exact economic rents from others. Agencies tend to be captured by the firms they regulate and thus promulgate regulations to benefit those firms even though the regulations are inefficient and exploit consumers.

This literature purports to do far more than critique seemingly bad results. It offers an account of the mechanisms by which small groups with few votes can accomplish what seems paradoxical in a democratic system: a systematic bias in lawmaking that benefits small groups, at the expense of large groups with more votes. In particular, the literature explains that the political system allows the exploitation of large diffusely interested majorities because they are less able to police free riding in political effort than smaller, intensely interested groups. Modern interest group theory thus offers a compelling explanation for something we all know is true: our democratic system regularly produces some results that appear contrary to the interests of the general public. …

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