Faculty Scholarship

Document Type


Publication Date



... [T]hree of the earliest and most influential proponents of the argument that public choice theory implies that courts produce better rules than legislators are Judge Frank Easterbrook, Judge Richard Posner, and Justice Antonin Scalia. These proponents of social choice theory conclude from this that judicial decisions are more to be trusted than legislative decisions and therefore favor a variety of devices to expand judicial power. These include interpreting statutes restrictively, which leaves the decision up to the pre-existing judge-made law; interpreting statutes in a common-law fashion, which allows judges their traditional rule-making powers; and ignoring legislative intent, which leaves, as Justice Scalia admits, 'judicial wilfulness' unconstrained. These judicial activists are behaving exactly as public choice theory predicts they would act to advance their non-pecuniary agendas.

The history of New York's lay judges and their professional colleagues [discussed at length in this article] suggest that the susceptibility of elected officials to interest-group politics and the special interest of the judiciary both skew decisions. Public choice theorists should consider both in making normative judgments about courts and legislatures and the tasks appropriate to each. [excerpt]