Robert Fellner (George Mason University, Antonin Scalia Law School) has posted A Public Choice Analysis of Judicial Deference on SSRN. Here is the abstract:
Currently, courts treat economic regulations as generally immune from judicial review. The basis for this deference is the belief in the public interest theory of legislationwhich posits that the legislative process can reliably produce outcomes that reflect majority preferences. Applying the tools of public choice reveals that courts are relying on a flawed model when they refuse to meaningfully review economic regulations. Public choice analysis also reveals that enhanced judicial review is likely to do a better job of protecting economic rights and increasing economic welfare, without offsetting harms to other public interest values, such as a respect for majority preferences.
