Professor Cross challenges the conclusion of many Public Choice theorists that government's judicial branch is more amenable to making good public policy than the legislative or executive branches. These theorists' conclusion is based partly on the notion that lawmakers, perennially concerned about funding reelection campaigns, are more susceptible to narrow special interests than are life-tenured judges. Professor Cross points out, however, that this conclusion ignores aspects of the structure of the judiciary that lend it to manipulation by special interests at the expense of the public interest. Special interests can exercise control over public policy through the judiciary in a variety of ways, including marshaling their superior resources in litigation against the more diffuse public interest, invoking the judicial requirement of standing to keep the representatives of the public interest out of court, and engaging in "precedent purchasing." Professor Cross also argues that some Public Choice theorists have taken their point about legislators' susceptibility to private interests too far. After all, legislators are ultimately answerable to the voters at large, and if voters perceive that one of their representatives is completely in thrall to special interests, they will presumably elect her out of office. Finally, Professor Cross presents recent examples of the judiciary's susceptibility to narrow private interests in the areas of private enterprise, environmental law, and legislative procedural reform.
Frank B. Cross,
The Judiciary and Public Choice,
50 Hastings L.J. 355
Available at: https://repository.uchastings.edu/hastings_law_journal/vol50/iss2/3