Vol. 1 No. 7 (September, 1991) pp. 102-103
LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION by Daniel A.
Farber and Philip P. Frickey. Chicago and London: The University
of Chicago Press, 1991. ix + 159pp.
Reviewed by Jonathan Riley, Murphy Institute of Political Econo-
my, Tulane University.
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!
Copyright 1991