ABSTRACT
This chapter explores the basis of the pro-judiciary analysis. It also considers the nature of the legal and political proposals. Law and economics has had a longstanding preference for litigation over legislation. Some have argued that the common law was efficient, in contrast to the relatively inefficient public law created by legislatures. The focus on decisionmaker incentives makes courts look appealing from a public choice perspective but ignores the structural effects of institutional arrangements. The theory of public choice and the legislature describes the "purchase" of legal benefits by special interests best able to pay for such benefits, such as by campaign contributions to elected officials. Supreme Court standing doctrine explicitly favors special interests seeking rents at the expense of the broad general public. In the extreme version of public choice modeling, all government action is inefficient and unwise. Public choice theory logically calls for less, not more judicial involvement in law-making.
