Legal Commentary

I just posted on SSRN a draft chapter entitled "Federalism and Public Choice." (The chapter is to be included in a collection on Law and Public Choice, edited by Dan Farber and Anne Joseph O'Connell and published by Elgar).

Writing this survey about public choice and federalism left me with the odd feeling that the literature really has nothing to say about public choice and federalism. The literature is overwhelmingly focused on individual choice, not public choice: The vast majority of the scholarship revolves around Tiebout's idea that an individual's decisions to migrate between jurisdictions reveals those individuals' preferences for local public goods. Since the 1980s, political scientists have added a theory of political economy to Tiebout's theory of locational economies, arguing that central governments cannot be trusted to decentralize power to state and local governments, because central legislatures (1) promote universalistic coalitions through pork-barrel spending; (2) behave in a predatory "Leviathan"-like manner to maximize their own budgets (Brennan & Buchanan); or (3) are captured by cartel-promoting business interests (Barry Weingast).

None of this literature about the alleged flaws of national politics says much about what subnational politicians want. The ability to migrate from a badly governed subnational jurisdiction is just going from frying pan to fire unless somehow subnational politicians can be made to care about losing tax base, population, property value, etc. Of course, the obvious mechanism is voting, but public choice theorists do not seem to believe that voting helps much, citing the usual problems of rational ignorance, collective action problems in forming interest groups, unstable majorities, etc.

The paucity of public choice scholarship on the ways in which scale of jurisdiction affects political choice is especially odd in American political theory. The Anti-Federalists and Jacksonians were, in a sense, America's original public choice theorists: They were obsessed with the private corruption of public power, but they thought that subnational politics, not interjurisdictional mobility, was the cure. Where has this American tradition of federalism and public choice gone?