Academic

Mashaw on Public Law & Public Choice

By Lawrence Solum

Jerry Louis Mashaw (Yale Law School) has posted Public Law and Public Choice: Critique and Rapprochement (RESEARCH HANDBOOK ON LAW AND PUBLIC CHOICE, Daniel A. Farber, Anne Joseph O'Connell, eds., Edward Elgar, 2009) on SSRN. Here is the abstract:

Public choice theory is a theory of how government works and therefore of how public law is made and applied. But it is not a theory like the general theory of the second best, that is, a single proposition that articulates a general truth. It is better understood as a field whose practitioners share some general commitments and whose boundaries remain fuzzy. Public choice is a part of the more general fields of law and economics or of political science. It has affinities and overlaps with fields that use different labels, such as, ?social choice? and it is difficult to distinguish from the work of those who style themselves as contributors to positive political theory, but who would not necessarily identify themselves as public choice theorists.

For purposes of this chapter I will not attempt to distinguish carefully among Public Choice Theory (PCT), Positive Political Theory (PPT) and Social (or Collective) Choice Theory (SCT). For, they all share a basic assumption: that political actors ? the individuals, groups, and politico-legal institutions that make public law ? act on the basis of rational self-interest. And they all seek to understand what types of decisions and legal arrangements will emerge from the interactions of individual or organizational preferences and particular institutional arrangements for decision making. This is a micro-level form of analysis that does not rely on descriptions or predictive hypotheses employing broader sociological constructs such as class interest or ideology.

The unruliness of Public Choice Theory (PCT) is mirrored in the critiques of its propositions. Some critiques are from within the core of the field, and tend to challenge particular findings or propositions on evidentiary or methodological grounds. Other critics, often from mainstream political science or the legal academy, present more fundamental attacks, claims that PCT?s basic assumptions are false or that its empirical hypotheses are inherently untestable.

Surveying and critically examining the literature on PCT must somehow bring some order to both the content of the field under discussion and the critical perspectives on its achievements ? or failures. This chapter addresses that challenging task in a stepwise fashion. First, it will provide a basic overview of some of the foundational public choice literature and a brief sampling of critical commentary on the PCT claims and approaches. The discussion will then turn to a more detailed view of the critical literature as it relates to various sub-fields of public choice inquiry. Much of PCT scholarship is fragmented by particularistic focus on a single institution ? elections, legislators, administrative agencies or courts ? or on the interactions between diads of institutional actors (voters and legislatures, legislatures and agencies, etc.) The critical commentary often mirrors that fragmentation and this discussion will track that (dis) organization. Finally the chapter concludes with an attempt to put PCT?s claims and its critics? complaints into a more balanced perspective than a reading of the PCT literature or its critics alone might suggest.

Full post as published by Legal Theory Blog on July 30, 2009 (boomark / email).