The Judicial Review Game

Abstract

The conventional wisdom in legal scholarship has been that aggressive judicial review is the creation of activist judges seeking to read their preferences into the Constitution and that this type of activism is problematic in a representative democracy. This wisdom has traditionally rested upon little systematic positive or normative political theory. Public choice theory, the application of economic supply (legislator) and demand (interest group) concepts to public law, is a descriptive theory that provides interesting insights about the legislative process, and it was the rage among law professors in the 1980s. Thus informed, legal scholars questioned the conventional wisdom about judicial review.