In Law and Public Choice, Daniel Farber and Philip Frickey present a remarkably rich and accessible introduction to the driving principles of public choice. In this, the first systematic look at the implications of social choice for legal doctrine, Farber and Frickey carefully review both the empirical and theoretical literature about interest group influence and provide a nonmathematical introduction to formal models of legislative action. Ideal for course use, this volume offers a balanced and perceptive analysis and critique of an approach which, within limits, can illuminate the dynamics of government decision-making.
“Law and Public Choice is a most valuable contribution to the burgeoning literature. It should be of great interest to lawyers, political scientists, and all others interested in issues at the intersection of government and law.”—Cass R. Sunstein, University of Chicago Law School
This interesting study aims "to offer a balanced appraisal of public choice and some of its implications for the American legal system" (p.5). Public choice is defined rather loosely as the application of economic analysis to political decisionmaking (p.7). Yet this permits the authors, who label themselves as legal pragmatists as opposed to grand theorists (pp. 6-9, 116-18, 142-43), to canvass a variety of distinct formal approaches in search of pragmatic lessons for students of public law. They argue that these approaches direct attention to influences on legislation that are often neglected by legal scholars, to wit, self-interested bargaining and legislative structure and process. But they are equally concerned to defend republican ideals of legislative deliberation and civic virtue. In their view: "Properly understood, public choice theory can support the republican vision of deliberative democracy" (p.8). Because they believe that Madison's political thought also involves this sort of mixture of public choice and republican elements, they refer to their "unifying perspective" as "a neo-Madisonian view of the political system" (p.9). With minor caveats, I think this book marks a competent and judicious beginning to the important task of integrating public choice and public law. One pragmatic lesson drawn from public choice theory by the authors is that broad judicial activism cannot be predicated on any crude pluralist view that legislation is simply a reflection of bargaining among special interests (Chapter 1). As they note, such basic political phenomena as voting and legislators' deference to the goals of their constitu- ents are not easily explained in terms of the rent-seeking behavior which preoccupies economists. They suggest that strate- gic self-interest may need to be supplemented by a Kantian notion of ideological commitment to account adequately for legislative outcomes. Given the limited explanatory power of public choice theory, the authors reject its use as a grand foundation for radical constitutional doctrines that advocate sweeping judicial nullification of putatively rent-seeking legislation (Chapter 3). Thus, for example, they deny that public choice theory justifies a return to anything like the Lochner era (pp. 63-73), strong states' rights (pp. 73-8), or a general ban against delegation of legislative authority to administrative agencies (pp. 78-87). A second pragmatic lesson drawn by the authors is that judicial interpretation should consider carefully the procedural context of legislation because Arrow-type impossibility theorems have shown us the general futility of searching for coherent aggregate goals such as "the popular will" or "the legislature's intent" (Chapter 2). As they suggest, republicans cannot escape plausibly from these negative results by stipulating that consen- sus will emerge on the basis of "deliberation" (pp. 42-7). The problem is that if individual values differ PRIOR to delibera- tion, then consensus requires an extraordinarily strong notion of reason that leads Page 103 follows: in all contexts to one right answer; yet if individual values differ even slightly AFTER deliberation, then Arrow-type problems remain. Nevertheless, in line with their program of fusing public choice and republicanism, the authors argue that legisla- tive procedures may at least sometimes transform preferences such that outcomes of those procedures are regarded by all as reason- able democratic choices (pp. 55-62). They go on to defend a process-centered theory of statutory interpretation in which evidence about how legislation was drafted is held to provide a reasonable notion of legislative intent when statutory language is ambiguous (Chapter 4). What was said in relevant committees, for example, might in principle help the courts to decide when to defer to the legislature in light of "postenactment events" such as altered social customs and/or judicial errors that have established bad precedents (pp. 106-15). The authors also discuss and illustrate various more specif- ic judicial strategies to heighten scrutiny of the lawmaking process for the twin purposes of curbing undue influence of special interests and remanding to the legislature any procedur- ally-suspect pieces of legislation (Chapter 5). Their examples are drawn for the most part from cases involving economic legis- lation. But some implications of this neo-Madisonian approach for the controversial contraception and abortion decisions are summarized in an epilogue. Two points of criticism are worth mentioning. First, without further argument, the authors' focus on legislative structure and process does not really avoid the NORMATIVE implications of Arrow-type problems for democratic theory. Unless we are simply to applaud historical accidents, institutions and associated power relations must themselves be justified as products of "reflection and choice," in which case Arrow-type impossibilities seem to re-emerge at the level of constitutional choice. In short, although it may be relatively straightforward to induce equilibria by imposing structural constraints, restrictions on preferences (for example, convexity conditions) and/or limita- tions on intellectual capacities (for example, some theory of decisionmaking under ignorance), the normative question remains: Why are such assumptions appropriate in terms of democratic ideals? In the absense of a compelling normative democratic theory, it is not easy to see what the second pragmatic lesson ultimately amounts to. Second, the authors fail to stress the equal relevance of Arrow-type impossibilities to JUDICIAL decisonmaking. By implica- tion, judicial structure and process should be as crucial for judicial outcomes as legislative structure and process are for legislative outcomes. Indeed, judicial and legislative struc- tures are made interdependent by the system of checks and balanc- es, with possible implications for each branch's behavior. Public choice theory, it seems, should view judges as strategic agents seeking to maximize their own diverse goals (not necessar- ily materialistic). In that light, for example, Justice Scalia's attack on legislative intent (pp.88-100) should perhaps be seen merely as a bold strategic move to enhance his own role as an agenda-setter in the context of separated powers!