Lobbying and influencing the judiciary – surprisingly overlooked, highly consequential and a promising area for future inquiry

Business lobbying or interest group engagement with the political process more broadly is typically conceptualized as covering all three branches of government. Yet the overwhelming bulk of both theoretical and empirical scholarship focusses on the executive and legislative. There is only a small sliver of scholarship - primarily in critical legal studies and some corners of political science that concerns itself with lobbing and influencing the judiciary. What’s more, this body of scholarship is very fragmented, highly diverse in disciplinary background and geographic focus, often employs a very narrow notion of lobbying and is insufficiently linked into broader discussions in interest group representation and business lobbying. This paper focusses on business lobbying, or more encompassing corporate political activity (henceforth CPA) to advance five main points. First, I will provide empirical evidence that influencing the judiciary is indeed both conceptually under-developed and empirically overlooked in political science, as well as in business studies on CPA. In a second step I will discuss several reasons for why this is so; some related to theoretical, other more to practical misconceptions or blind spots. Next, I will argue that this is a rather unfortunate situation. Engaging with the judiciary, not through litigation, but through a variety of standard influencing practices, as well as through some rather idiosyncratic tactics, is a core area for both collective and individual CPA. Corporate political activity directed at the judiciary system is highly complementary to, at times substitutive for, and always deeply intertwined on several different levels with “conventional” conceptions of CPA. Judiciary related CPA is very consequential. It is highly policy relevant in its own right, and very productive for advancing our understanding of corporate influencing more broadly. In a fourth step I will sketch the outline of a conceptual framework to help think about and cluster the very different types of CPA that take place around the judiciary. These types range from individual, episodic interventions around specific court cases or litigation exposures to long-term collective investments in shaping the fundamental architecture of the judicial system and make it conducive to specific business interests. The latter in particular with its ambition to architect a structurally advantageous ordering of rights, their interpretation and their adjudication has the potential to outlast and outperform comparable long-game investments in lobbying the executive or legislative branches. To build this framework I draw heavily on journalistic accounts, empirical vignettes from the grey policy literature and on a review of related conceptual and empirical contributions in a variety of fields. Finally, I will propose promising avenues for future research on CPA and interest group interventions in the judiciary. This outlook is guided by the potential for advancing scholarly discourse in interest group studies and it is also animated by the policy relevance of CPA in the judicial sphere considering the widespread shortcomings in the existing integrity infrastructures of practical judicial systems in many contexts.