Research Handbook on Public Choice and Public Law

Research Handbook on Public Choice and Public Law

Research Handbooks in Law and Economics series

Edited by Daniel A. Farber and Anne Joseph O’Connell

Public choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.

Chapter 1: Public Law and Public Choice: Critique and Rapprochement

Jerry Mashaw

Subjects: economics and finance, public choice theory, politics and public policy, public choice


Jerry Mashaw Introduction 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. Social choice theorists (SCT) tend to focus on an important,...

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