Does Interest Group Theory Justify More Intrusive Judicial Review?

Abstract

As the above discussion suggests, the foregone contributions can include the failure to vote or to read about issues.18.Although this is usually termed the free rider problem, George Stigler has more accurately dubbed it the "cheap rider" problem since the group member who does not participate does incur some costs.George .Stigler, Free Riders and Collective Action, 5 BELL.J. MGMT.SCi.359, 359-60 (1974).Nonparticipation marginally decreases the probability and magnitude of group success and may, to the extent members have somewhat varying preferences, result in group action less favorable to that member than would have resulted had she participated.Id. at 359-62.The point remains, however, that these costs of riding on the efforts of others can be sufficiently cheap that individual members will not participate despite the clear collective benefit of group participation.19.Typical punishments include legal penalties, social sanctions, the threat of violence, and the denial of noncollective benefits that the group would otherwise confer on individual members.OLSON, supra note 16, at 13, 61-63, 68-76; Becker, supra note 13, at 377 (collecting later sources).20. Olson predicts that large diffuse groups can succeed in such collective efforts only if they obtain the resources necessary to police free riding as a byproduct of providing some other service.OLSON, supra note 16, at 3, 132-59.Some object that this requires that the subsidizing service be provided at supracompetitive prices, which could be undercut by any competitor that provides the service but does not police free riding.E.g., RUSSELL HARDIN, COLLECTIVE AcTION 33-34 (1982).But, Olson argues, sometimes such competition will not pose a problem because the group has market power or enjoys a market advantage conferred by governmental action because of the group's petitioning efforts.See OLSON, supra note 16, at 133 n.2.Because preserving such legal market advantages requires maintaining the group's political clout, such groups have an ongoing incentive to invest resources to curb free riding.21. OLSON, supra note 16, at [27][28][34][35][32][33][35][36] Peltzman, supra note 11,; see also DENNIS MUELLER, PUBLIC CHOICE II, at 310 (1989) (reviewing experimental literature on free riding in prisoners' dilemma situations)."Large" and "small" do not refer to the size of a group's economic assets nor to the number of individuals the group represents, but rather to how many independent members the groups have.A "small" group has few independent members; a "large" group has many.An interest group comprising a few corporations would thus be considered small even though each member corporation has large assets and represents the interests of numerous shareholders or workers.The key is that each corporation has a hierarchical structure that allows it to act internally without coordinating independent behavior.For clarity and emphasis, the discussion in the text contrasts large groups with members who are uniformly diffusely interested and small groups with intensely interested members.However, obviously some large groups may have a few members with very high per capita interests in group action.Such groups will be likely to engage in more petitioning than large, uniformly diffuse groups, and perhaps in more petitioning than smaller groups with less intense per capita interests.See HARDIN, supra note 20, at 40-42.A group's willingness to devote resources to collective action will thus turn not only on group size and on average 1991

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