The judiciary and public choice

Professor Cross challenges the conclusion of many Public Choice theorists t hat government's judicial branch is more amenable to making good public pol icy 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 intere sts than are life-tenured judges. Professor Cross points out, however, that this conclusion ignores aspects of the structure of the judiciary that len d it to manipulation by special interests at the expense of the public inte rest. Special interests can exercise control over public policy through the judiciary in a variety of ways, including marshaling their superior resour ces in litigation against the more diffuse public interest, invoking the ju dicial requirement of standing to keep the representatives of the public in terest out of court, and engaging in "precedent purchasing." Professor Cros s also argues that some Public Choice theorists have taken their point abou t legislators' susceptibility to private interests too far. After all, legi slators are ultimately answerable to the voters at large, and if voters per ceive 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, a nd legislative procedural reform.