Edited by William F. Shughart II, Laura Razzolini and Michael Reksulak
It is a truth universally acknowledged that a well-governed country possesses a judicial system that enforces the ‘rule of law’ and constrains politicians. Careful study of the judiciary is thus essential for understanding the policy-making process. Yet the public choice literature has paid relatively little attention to judges, focusing instead on legislatures, the executive branch, voters, and bureaucracies. Why? Certainly, many judicial decisions involve non-policy questions – is a suspect guilty of murder? But a more important reason for the neglect likely stems from the very nature of the public choice approach. Public choice was born as an attempt to model and measure the effect on public policy of concrete individual objectives, such as the desire to win elections, build budgets, and advance careers. Judges are often assumed to be ‘independent’ of such objectives. Ergo, public choice theory can have little to say about them. Richard Epstein (1990, p. 827) sums up this view in an article on the courts subtitled, ‘The uses and limitations of public choice theory’: ‘How do judges behave in deciding cases? The question seems to be peculiarly immune to the ordinary techniques of social science analysis. While public choice theory in particular has achieved important breakthroughs in understanding legislative behavior, it has not achieved similar successes in dealing with judicial behavior.
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