Does Public Choice Theory Justify Judicial Activism After All

Abstract

Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called "law change" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for