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Reassessing the role of the independent judiciary in enforcing interest-group bargains

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  • Donald Boudreaux
  • A. Pritchard

Abstract

William Landes and Richard Posner contend that judicial independence maximizes the value of legislative deals with interest groups by enhancing the durability of those deals. Despite its acceptance among economics-minded scholars, we argue that this theory is seriously deficient. The ‘strong’ positive version of this theory fails as an attempt to explain the origin and maintenance of judicial independence because it ignores collective-action problems plaguing both the legislature and the judiciary in fostering judicial independence. The ‘weak’ descriptive version inadequately describes the full historical record. We re-interpret some empirical findings—previously thought to support the Landes-Posner theory—in light of our analysis. We conclude that the United States federal judiciary is truly independent of Congress and the President, and that this independence was designed by the Constitution's framers as a means of furthering sound government. Copyright George Mason University 1994

Suggested Citation

  • Donald Boudreaux & A. Pritchard, 1994. "Reassessing the role of the independent judiciary in enforcing interest-group bargains," Constitutional Political Economy, Springer, vol. 5(1), pages 1-21, December.
    • Handle: RePEc:kap:copoec:v:5:y:1994:i:1:p:1-21
    DOI: 10.1007/BF02393253
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    References listed on IDEAS

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    1. Landes, William M & Posner, Richard A, 1975. "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, University of Chicago Press, vol. 18(3), pages 875-901, December.
    2. Toma, Eugenia Froedge, 1991. "Congressional Influence and the Supreme Court: The Budget as a Signaling Device," The Journal of Legal Studies, University of Chicago Press, vol. 20(1), pages 131-146, January.
    3. Landes, William M & Posner, Richard A, 1976. "Legal Precedent: A Theoretical and Empirical Analysis," Journal of Law and Economics, University of Chicago Press, vol. 19(2), pages 249-307, August.
    4. Anderson, Gary M & Shughart, William F, II & Tollison, Robert D, 1989. "On the Incentives of Judges to Enforce Legislative Wealth Transfers," Journal of Law and Economics, University of Chicago Press, vol. 32(1), pages 215-228, April.
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    Cited by:

    1. Ludwig Van den Hauwe, 2005. "Constitutional Economics II," Chapters, in: Jürgen G. Backhaus (ed.), The Elgar Companion to Law and Economics, Second Edition, chapter 13, Edward Elgar Publishing.
    2. Eckardt, Martina, 2004. "Evolutionary approaches to legal change," Thuenen-Series of Applied Economic Theory 47, University of Rostock, Institute of Economics.
    3. Daniel Sutter, 2003. "Durable Constitutional Rules and Rent Seeking," Public Finance Review, , vol. 31(4), pages 413-428, July.
    4. Voigt, Stefan & Ebeling, Michael & Blume, Lorenz, 2007. "Improving credibility by delegating judicial competence--the case of the Judicial Committee of the Privy Council," Journal of Development Economics, Elsevier, vol. 82(2), pages 348-373, March.
    5. Matthew C. Stephenson, 2003. "“When the Devil Turns … ”: The Political Foundations of Independent Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 32(1), pages 59-89, January.
    6. Timothy M. Shaughnessy, 2005. "A Preliminary Analysis of Campaign Contributions in Florida's Legislative and Judicial Elections," Journal of Private Enterprise, The Association of Private Enterprise Education, vol. 20(Spring 20), pages 43-67.
    7. Cohen, Alon, 2014. "Independent judicial review: A blessing in disguise," International Review of Law and Economics, Elsevier, vol. 37(C), pages 209-220.
    8. Daniel Sutter, 1997. "Enforcing Constitutional Constraints," Constitutional Political Economy, Springer, vol. 8(2), pages 139-150, June.
    9. Nadia Fiorino & Fabio Padovano & Grazia Sgarra, 2007. "The Determinants of Judiciary Independence: Evidence from the Italian Constitutional Court (1956-2002)," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 163(4), pages 683-705, December.
    10. Christoph Engel, 2001. "Delineating the Proper Scope of Government: A Proper Task for a Constitutional Court?," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 157(1), pages 187-219, March.
    11. Fiorino, Nadia & Gavoille, Nicolas & Padovano, Fabio, 2015. "Rewarding judicial independence: Evidence from the Italian Constitutional Court," International Review of Law and Economics, Elsevier, vol. 43(C), pages 56-66.
    12. Fiorino, Nadia & Gavoille, Nicolas & Padovano, Fabio, 2015. "Rewarding judicial independence: Evidence from the Italian Constitutional Court," International Review of Law and Economics, Elsevier, vol. 43(C), pages 56-66.

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    Keywords

    K40;

    JEL classification:

    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General

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