Bibliography: M. Elizabeth Magill, Courts and Regulatory Capture, in Preventing Capture: Special Interest Influence in Regulation, and How to Limit It, Daniel Carpenter and David Moss, editors, Cambridge, Mass.: Tobin Project, forthcoming 2013.
This draft chapter for an edited volume asks whether judicial review of agency action prevents or facilitates agency capture and, to the extent it fails to prevent capture, asks how judicial review could be redesigned to more effectively police agency capture. Judicial review’s effectiveness at controlling capture depends heavily on the definition and pattern of regulatory capture and the chapter starts by identifying different definitions of capture. The chapter then examines whether judicial controls are effective at detecting and policing capture. It argues that judicial controls are in some ways better at preventing capture than political controls, but in other ways such controls are poorly suited to police capture. The chapter then identifies several features of judicial controls on administration that could be altered to improve its capacity to police capture, but also argues that, if the goal is preventing agency capture, judicial review has some inherent limitations.