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 8: Public Choice and Constitutional Design

Tom Ginsburg

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


Tom Ginsburg1 Public choice and the centrality of constitutional design Constitutional design is a central concern of public choice and its related discipline of constitutional political economy. Public choice, typically described as the application of economics to political science, seeks to understand problems of aggregating preferences in collective decision-making (Mueller 1997; Farber and Frickey 1991). Constitutional political economy focuses more narrowly on the role of rules in structuring and constraining decision-making, shifting the terrain from choice within rules to the choice of higher order ‘constitutional’ rules. As Brennan and Buchanan (1985, 10) put it, ‘If rules influence outcomes and if some outcomes are ‘better’ than others, it follows that to the extent that rules can be chosen, the study and analysis of comparative rules and institutions become proper objects of our attention.’ (For more on the relationship among law and economics, public choice and constitutional political economy, see Voigt 1997; Van den Hauwe 2000). Political constitutions of nation states are only one example of ‘constitutional’ rules and institutions. They are, however, a particularly central set for public choice scholars to consider because constitutions are central to the production of public goods. The basic assumption is that different constitutional schemes can have different incentive effects on public good production and its paradigmatic challenge of interest group influence. The research program on optimal constitutional design is now nearly five decades old, and has incorporated contributions from many different disciplines (see for example, Cooter 2000; Voigt 1997; Stearns and Zywicki 2010; Riker 1964;...

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