Why Informed Judges Defer to (Almost) Ignorant Legislators: Accounting for the Puzzle of Judicial Deference.

A simple game- and information-theoretic setting is used to explain why judges who are members of an independent judiciary might choose to review ordinary legislation under the highly deferential ‘rationality’ standard of U.S. constitutional law. Current explanations - including the ‘representational’ rationale and the Landes-Posner model - are first surveyed and then rejected as insufficient. The alternative developed here posits the possibility that judicial deference reflects the rational response of judges to information aggregation in plural legislatures over the empirical dimensions of challenged legislation. The analysis explains why a judge might choose to defer to a legislative enactment even though the judge was significantly more informed regarding a law’s outcomes than each of the individual legislators who enacted the law. [ABSTRACT FROM AUTHOR]