Public Law and Public Choice: A Critique and Rapprochment

Public theory is a theory of how government works and therefore of how public law is made and applied. But it is not a theory like the general theory of the second best, that is, a single proposition that articulates a general truth. It is better understood as a field whose practitioners share some general commitments and whose boundaries remain fuzzy. Public is a part of the more general fields of law and economics or of political science. It has affinities and overlaps with fields that use different labels, such as, social choice and it is difficult to distinguish from the work of those who style themselves as contributors to positive political theory, but who would not necessarily identify themselves as public theorists. For purposes of this chapter I will not attempt to distinguish carefully among Public Choice Theory (PCT), Positive Political Theory (PPT) and Social (or Collective) Choice Theory (SCT). For, they all share a basic assumption: that political actors - the individuals, groups, and politico-legal institutions that make public law - act on the basis of rational self-interest. And they all seek to understand what types of decisions and legal arrangements will emerge from the interactions of individual or organizational preferences and particular institutional arrangements for decision making. This is a micro-level form of analysis that does not rely on descriptions or predictive hypotheses employing broader sociological constructs such as class interest or ideology. Social theorists (SCT) tend to focus on an important, but relatively isolated, aspect of the overall governance problem - what type of voting arrangements, if any, can make collective decisions accurately reflect the preferences of individuals, whether those individuals are voting in general elections, committees, legislatures, clubs or whatever. PCT and PPT scholars address a broader set of topics. They seek to explain the behavior of voters, legislators, administrators and courts, not just the means by which individual preferences can be aggregated effectively within various institutions for collective choice. This interest in multiple lawmakers and their interactions gives a strategic or game-theoretic caste to PCT and PPT accounts. Public theory and positive political theory are distinguished from each other largely by their differing normative commitments. PCT practitioners tend to be committed to norms of strong efficiency (the Paeto principle) and individual liberty. Because collective often fails to honor either or both of these values, PCP analyses, certainly as explicated in the foundational works in the field, have a strongly critical tone. Much collective action is described as rent seeking, meaning the use of collective means to make inefficient transfers from more politically powerful to less politically powerful groups. By contrast PPT tends to exalt democratic choice. PPT scholars focus on the means by which the decisions of majoritarion institutions - particularly legislatures - can be made and implemented effectively given the necessity for division of labor, both within the legislature and between the legislature and implementing institutions - agencies and courts. (McNollgast, 2007). These differences in institutional focus and normative commitments are hardly trivial, particularly from the internal perspective of practitioners within these various fields. But in surveying their contributions to the understanding of public law, and the criticisms of those contributions, we will only occasionally need to distinguish one school from the other. Hence, for convenience, I will generally lump them all together as Public Choice Theory (PCT). The unruliness of Public Choice Theory (PCT) is mirrored in the critiques of its propositions. Some critiques are from within the core of the field, and tend to challenge particular findings or propositions on evidentiary or methodological grounds. Other critics, often from mainstream political science or the legal academy, present more fundamental attacks, claims that PCT's basic assumptions are false or that its empirical hypotheses are inherently untestable. Surveying and critically examining the literature on PCT must somehow bring some order to both the content of the field under discussion and the critical perspectives on its achievements - or failures. This chapter addresses that challenging task in a stepwise fashion. First, it will provide a basic overview of some of the foundational public literature and a brief sampling of critical commentary on the PCT claims and approaches. The discussion will then turn to a more detailed view of the critical literature as it relates to various sub-fields of public inquiry. Much of PCT scholarship is fragmented by particularistic focus on a single institution - elections, legislators, administrative agencies or courts - or on the interactions between diads of institutional actors (voters and legislatures, legislatures and agencies, etc.) The critical commentary often mirrors that fragmentation and this discussion will track that (dis) organization. Finally the chapter concludes with an attempt to put PCT's claims and its critics' complaints into a more balanced perspective than a reading of the PCT literature or its critics alone might suggest.