The existence of such political power tends to reinforce the court s conclusion in Murphy . Employers thus are far more likely to lobby for favorable legislation, and legislators undoubtedly respond to lobbying and campaign contributions. This description suggests that courts should be more active. They should shift to employers the burden of persuading the legislature to repeal unfavorable judicial decisions. To these let me add an argument that we did not discuss in class.
States compete actively to encourage potential employers to locate within the jurisdiction.
If employers are malevolent, rapacious, and unconstrained by any need to satisfy their employees, then we might expect the laws to become strongly employer-friendly. If, however, benevolent employers seek a legal climate that will make employees happy and productive, then this process might produce laws with more of a pro-employee orientation. The point of this argument and those we discussed in class is to show that we should not accept uncritically arguments for judicial restraint that are based on comparative institutional competence. The arguments may well be justified. But the defense of judicial restraint is considerably more complex than most judicial pronouncements suggest.