Research Handbook on Public Choice and Public Law
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Research Handbook on Public Choice and Public Law

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.
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Chapter 7: The Judiciary

Tonja Jacobi


Tonja Jacobi Public choice has increasingly been applied to the judiciary in recent years, because it has proved to be useful as both a predictive and explicative tool. At heart, public choice is a mechanism of tracing the effects of institutional structures and constraints. As such, it aids both ex ante analysis – answering such questions as ‘what do the various theories of judicial behavior predict?’ (see for example, Jacobi 2009, discussed below) – and post hoc analysis – helping to explain such puzzles as ‘why do we see extremist judicial appointments on the Supreme Court?’ (see for example, Bailey and Chang 2001).1 The term ‘public choice’ encompasses both ‘rational choice’ and ‘social choice.’ Rational choice is a system of logic premised on assumptions about how individuals maximize utility in a self-interested way; social choice applies similar logic to the associated puzzle of the extent to which systems of aggregating the preferences of individuals are themselves rational. Both of these modes of analysis have been applied in relation to the judiciary, but there is still considerable room for advantageous application of each, particularly social choice. In relation to the judiciary, rational choice has been more broadly and deeply developed than social choice. It has been applied to questions of both how judges make various types of decisions and how other actors make decisions that directly impact the judiciary – how the president and Senate make nominations and confirmations, what shapes litigant incentives, and how bureaucratic agencies respond to judicial rulings. Social...

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