Ways of Criticizing Public Choice: The Uses of Empiricism and Theory in Legal Scholarship

Public choice theory has been used to explain a wide range of observable facts. It has also been influential in legal scholarship. In Part I of this article, Tom Ginsburg reviews the main premises behind public choice theory and discusses how these premises have fared when tested empirically. In this section, for example, the author discusses how casual empirical observation of the "free rider" problem suggests that individuals do not always seek to maximize their own self-interest. The author further points out that additional studies, like Ostrom's empirical observations of a Turkish fishery, are necessary in order to explain why individuals cooperate and contribute to public goods-and why they do not. In Part II, the author considers a revised theory of collective action with different implications for the prospect of democratic government. The revised theory models society as made up of three characters: (1) pure rational actors, (2) conditional cooperators, and (3) willing punishers. This model is more consistent with observed behavior than earlier public choice theories and enables researchers to focus on specific problems that would otherwise be difficult to examine. The author goes on to discuss the normative implications of public choice theory and concludes with a discussion of the role of positive and normative theories in law and social science.