Aranson, Peter H.
Models of Judicial Choice as Allocation and Distribution in Constitutional Law
1990 B.Y.U. L. REV. 745 (1990)

Aranson models Supreme Court decision-making as a complex game. Public choice theory suggests that not only legislators but also the Justices maximize an objective utility function by engaging in strategic behavior. This technical treatment of the Court shows that under some circumstances the game will not reach equilibrium across cases (an application of Arrow's Impossibility Theorem), meaning that the Justices must incorporate something outside the case at hand (such as the role of precedent) to have a consistent rationale.

Bishop, William
A Theory of Administrative Law
19 J. LEGAL STUD. 489 (1990)

The people in charge of administrative agencies, Bishop contends, can be understood as "agents," serving various "principals" -- e.g., the citizenry, the legislature, or the administrative agency itself. The purpose of administrative organization and doctrine, Bishop argues, is to minimize the agency costs (in the economic sense) that arise from these principal-agent relationships. Bishop applies this theory to various facets of administrative law, constitutional considerations aside.

Cohen, Linda R. & Spitzer, Matthew L.
Solving the Chevron Puzzle
57 L. & CONTEMP. PROB'S 65 (1994)

Rational choice theory suggests that the Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council represented a signal to appellate courts to give more discretion to administrative agencies in statutory interpretation. At that time, Cohen and Spitzer observe, the Supreme Court and the agencies were more politically conservative than the federal Courts of Appeals or Congress. However, by the late 1980s, the Supreme Court had ceased signalling for deference to agency interpretations. The reason for this switch, according to the authors, was that the administrative agencies had come to be more liberal than the federal appellate courts and the Supreme Court.

Cohen, Mark A.
Explaining Judicial Behavior or What's "Unconstitutional" about the Sentencing Commission?
7 J.L. ECON. & ORG. 183 (1991)

Cohen has found what he considers an excellent source for empirical examination of judicial motivation: the 200 district court cases that ruled on the constitutionality of the U.S. Sentencing Commission before the Supreme Court upheld the Commission in Mistretta v. United States. Although the Supreme Court's decision was 8-1, it turns out that a majority of the district court judges ruled the Commission unconstitutional.
Cohen hypothesizes that something can be learned from this set of decisions about judicial discretion, which is implicated in the very constitutional question under consideration in Mistretta; moreover, no case was on point at the time. Cohen assumes that judges prefer more discretion and would thus be inclined to rule the Commission unconstitutional. However, judges might fear making such a ruling because contradicting the administration might endanger their chances of promotion (this seems particularly unrealistic). So Cohen tests the following proposition: those judges who have greater promotion potential (determined by age, etc.) will, ceteris paribus, hue the administration line. His statistical work lends some support to this conclusion.

Cooter, Robert D.
The Minimax Constitution as Democracy
12 INT'L REV. L. & ECON. 292 ( 1992).

The Coase Theorem, says Cooter, demonstrates that the (only, it is implied) purpose of government is to lower transaction costs among groups in society and thus facilitate bargaining. Public choice theory, however, suggests that politicians will instead further their own interests. It follows that a pessimist would support a "minimax constitution," defined "as one that maximizes the welfare of citizens under the assumption that politicians are self-interested and uncooperative." (p. 293). In this very brief piece, Cooter asserts that this paradigm explains elections (competitive pressure on politicians to act in the public interest) and judicial review (same result), and, more broadly, that democracy is in many ways an artifact of the need for transaction-cost reducing government.

Easterbrook, Frank H.
The State of Madison's Vision of the State: A Public Choice Perspective
107 HARV. L. REV. 1328 (1994)

Easterbrook approaches the Federalist Papers "as the first chapter in the modern theory of public choice--the study of the interaction between governmental institutions and private efforts to influence them." (p.1329.) In this address, presented at a symposium on "Changing Images of the State," Easterbrook describes some of the reasons, suggested by public choice, why Madison's prediction that factions would neutralize one another hasn't worked perfectly in practice.
First, politicians are less immune to special interests today than in Madison's time because of cheaper transportation and communication costs. The same effect follows from legislative innovations, such as increased reliance on committees and the rise of administrative procedures, that make the law-making process more transparent. Second, special interests are also more easily coalesced in our day because of the ever-increasing division of labor. Third, Easterbrook argues, Madison underestimated the extent to which the majority would consist of "free riders" as compared with factions. Fourth, the sheer size of today's governmental expenditures increases the rewards to factionalism. Finally, the logic of majority voting, i.e., Arrow's Theorem, predicts that society will be unable to arrive at a shared vision of the common weal, leaving collective choice to a process of factional battles.

Eskridge, William N. & Ferejohn, John
Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State
8 J.L. ECON. & ORG. 165 (1992)

This article models the balance of power among the branches of government as a sequential game to analyze the effect of administrative agencies' growth. Not surprisingly, the rise of independent agencies has shifted power toward the executive. The pre-independent-agency model shows a particular balance (equilibrium) among the branches that required judicial supervision of the battle for power between Congress and the President. However, that judicial supervision did not materialize in either Chadha or Chevron, as the Court effectively abdicated its managerial role, leaving the legislative and executive branches to battle it out themselves. The authors' evaluation of this model is not so much normative as critical of the Court's purported "original intent" rationale in these two cases. They argue that their game analysis shows that separation of powers, as originally conceived, did in fact call for judicial supervision of the other two branches, casting serious doubt on the central rationale of formalist (as opposed to structuralist) separation of powers cases such as Chadha and Chevron.

Farber, Daniel A.
Economic Analysis and Just Compensation
12 INT'L REV. L. & ECON. 125 (1992)

Farber in this paper addresses the failure of conventional economic models to explain the just compensation requirement, and to offer as an alternative an explanation based on public choice theory. Standard economic analysis views the Takings Clause as having two important functions: to insure against losses from takings and to ensure that the government internalize the social cost of its expenditures. As for the first function, Farber is troubled by the assumption, implicit in the insurance rationale, that private citizens are generally risk averse; moreover, he argues, private insurance could satisfy equally well citizens' desires for just compensation. The second conventional economic rationale, government incentives, is equally plausible, but, according to Farber, remains unproven as an empirical matter. Farber's main point is that public choice theory provides a competing explanation for the Takings Clause. In a world without a just compensation requirement, landowners would form an interest group with the purpose of blocking approval of projects that involve the exercise of eminent domain over their land. Public choice theory suggests that legislators will respond by buying off the landowners and proceeding with the project. Farber's thesis is that "[t]he takings clause converts this political practice into a formal requirement, thereby fostering uniformity, predictability, and fairness," all of which are qualities desired to some extent by parties on both sides.

Farber, Daniel A.
Positive Theory as Normative Critique
68 S. CAL. L. REV. 1565 (1995)

Farber sets out the basics of interest group theory and Arrow's Theorem before considering the extent that Positive Political Theory (PPT) casts doubt on the democratic process. Farber observes that public choice theory and particularly the impossibility theorem are stated at very high levels of abstraction, and tend to focus only on legislatures and democracy. It follows, says Farber, that PPT isn't really suited to help us choose among decision-makers and specific institutional arrangements. The central point is that the normative impact of PPT is slim at the level of doctrine, but significant in its potential to undermine pluralistic democracy.

Farber, Daniel A.
Free Speech Without Romance: Public Choice and the First Amendment
105 HARV. L. REV. 554 (1991)

The central thesis of this paper is that the economics of information combined with public choice theory can explain much of First Amendment doctrine. Information is a quasi-public good since its owners are often unable to capture its full value. Public choice theory predicts that both the market and the legislature will undervalue goods with this characteristic. Therefore, it is necessary to encourage the production of socially useful information with a constitutional protection for information-related activities.

Fitts, Michael A.
Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions
88 MICH. L. REV. 917 (1990)

This article explores how imperfect information can aid the political process. The ambiguity that best serves the public interest is limited information about actors' ideologies. Fitts hypothesizes that if each of us fully understood each other's agendas, great fissures would become transparent, leading us to be much more likely to engage in hold-outs and other strategic behavior in order to frustrate our opponents. Political parties thus serve a beneficial cloaking function by aligning us by ideology rather loosely. A second type of benefit is described as "veils of ignorance" created by imperfect information. The idea is that because we have limited foresight, parties in power will temper their opportunism, lest they later bear the brunt of what they wrought when in control. Perfect information, by contrast, would lead the powerful to maximize their personal benefits.

Kornhauser, Lewis A.
Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System
68 S. CAL. L. REV. 1605 (1995)

This article presents a formal model of the judiciary as a "team" in pursuit of its own interests rather than the agent of the legislature. The team's goal is "correct" decisions, defined loosely enough to include the desire to be upheld on appeal, to follow precedent, to create a more efficient society, or to achieve corrective justice. The point is not the content of this goal, but the assumption that the judiciary acts together to maximize some shared value in light of resource constraints. How U.S. judges act together is through the hierarchical organization of courts, the division of law and fact, and the convention of vertical precedent. These are each explained as reflective of decisions made to optimize the number of "correct" decisions given limited resources. The point of this model is simply to derive several positive aspects of the U.S. judicial system.

Kornhauser, Lewis A.
Modeling Collegial Courts I: Path-Dependence; and Modeling Collegial Courts (II): Legal Doctrine
12 INT. REV. L. & ECON. 169 (1992); and 8 J.L. ECON. & ORG. 441 (1992)

Perhaps public choice theory's most nascent application is the modeling of judicial decision-making. The central problem, Kornhauser notes at the outset of the first of these two articles, is that analysts are utterly unable to ascribe a plausible objective function to judicial actors; in other words, there is a persistent question of motivation. Nevertheless, Kornhauser attempts to provide some bases for modeling judicial decisions. He observes that courts want to observe precedent; he hypothesizes that three aspects of a prior decision might each be followed--the rationale, the rule, and the result. He then employs game theory to show that because no judge exercises complete control over decision-making, judges will be most likely to avoid problems of cycling by following results (it's unclear how this would be distinguished in practice from following rules or rationales). Result-based decisions will lead to path dependence since prior results will dictate current decisions.
In the second article, Kornhauser formally models the effect of the doctrine of stare decisis on multi-judge decision-making. The point is to explain an paradox--how the result in a case decided by a panel of judges may differ from the majority results if each judge were to decide the case alone. This arises because an individual judge may not want to reach a certain issue, but because a majority of the court votes to reach the issue, the judge casts a vote. This effect is derived from a game-theoretic model of judicial decision-making. Kornhauser applies his model by examining in detail a few recent Supreme Court decisions, concluding that the structure of adjudication--that is, the collegial nature of appellate courts and the importance of adhering to precedent--may lead to different results under case-based and issue-based adjudication.

Kornhauser, Lewis A. & Sager, Lawrence G.
The One and the Many: Adjudication in Collegial Courts
81 CAL. L. REV. 1 (1993)

As in Kornhauser's other articles, the subject here is how appellate courts decide cases that present multiple issues. Two methods of decision-making are available--the judges may either sum the votes of the individual judges as to the outcome of the case overall or by summing the votes on each of the issues and then combining results. One artifact of this framework is that the two methods can lead to opposing results, a "doctrinal paradox" that suggests decisions are made in part because of voting protocol. The authors argue that neither method is always superior, and that courts should choose which to use based on several factors--whether the outcome of a case is more important than the rationale, whether the questions presented are independent, the importance of the outcome, and management concerns.

Macey, Jonathan R. & Miller, Geoffrey P.
The Canons of Statutory Construction and Judicial Preferences
45 VAND. L. REV. 647 (1992)

Macey and Miller say that Llewellyn's famous critique of the canons of statutory interpretation was "irrelevant" because it forestalled serious inquiry into the reasons that a judge may choose to invoke a particular canon. These choices, say the authors, are explained by judicial self-interest. The canons help judges avoid tough policy questions and technical issues that if treated on the merits would raise the chances of error. That they are used in this fashion accords roughly with what the authors think is desirable--an alternative ground of decision is used when error seems likely (they don't really explore the probability that the reason for using the canons is that a judge wishes to avoid "reasoned elaboration.")

Macey, Jonathan R.
The Role of the Democratic and Republican Parties as Organizers of Shadow Interest Groups
89 MICH. L. REV. 1 (1990)

This article explains political parties as political brokerage firms, matching candidates with support from citizen groups. The effect is to lower the political process's transaction costs to the extent that candidates maintain party membership even when running as an independent might be less costly.

Posner, Richard A.
The Material Basis of Jurisprudence
69 IND. L.J. 1 (1993)

Posner takes the anti-conceptual argument a step further here, offering an explanation for the development of a term like "jurisprudence," which he, in his pragmatist mode, condemns as obstructive of analysis. The reason for law's sometimes bewildering character, Posner speculates, is nothing more profound than money. He explains that lawyers have always operated as a cartel, and that in America the dissipation of this arrangement has just begun (he dates the beginning of increased legal competition at 1960). It's not surprising, then, that recent years have witnessed a growing disfavor with the appurtenances of this cartel, including the classical view of law as "discoverable," etc. In other words, lawyers' self-interest led them to portray the law as mysterious, resulting in high fees and high obfuscation.

Rosenberg, Gerald N.
The Implementation of Constituional Rights: Insights From Law and Economics
64 U. CHI. L. REV. 1215 (1997)

Rosenberg argues that economic analysis is critical to an understanding of the efficacy of judicial decisions that purport to advance the interests of relatively powerless social groups. The article examines the implementation of the constitutional rights created by Brown v. Board of Education and Roe v. Wade. Rosenberg observes that desegregation was practically non-existent during the first decade after Brown, and he hypothesizes that desegregation during the second decade after Brown resulted from "market incentives" created by Title VI of the 1964 Civil Rights Act and the 1965 Elementary & Secondary Education Act (both of which created monetary disincentives to segregation). The relatively quick implementation of Roe, in Rosenberg's view, can be traced to the immediate market "demand for the services" (to which doctors and hospitals were free to respond). Rosenberg concludes that implementation of Constitutional rights is more likely to be effective where extra-judicial actors offer incentives for compliance, extra-judicial actors offer disincentives for non-compliance, or court decisions allow for market implementation.

Schwartz, Edward P.
Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-making
8 J.L. ECON. & ORG. 219 (1992)

Game-theoretic treatment of Supreme Court decision-making, with the innovation that the Justices' preferences are viewed as nonseparable by case. That is to say, the model assumes that the Justices decide cases based in part on the precedential importance of the case relative to others. While this feature of the model captures something rather intuitive, other scholars have modeled the Court as deciding one case at a time (with the result that the median voter in any case always wins).

Snyder, James M.
Long-Term Investing in Politicians; or, Give Early, Give Often
35 J.L. & ECON. 15 (1992)

Statistical analysis of political action committees, which finds, predictably, that their donations to politicians are consistent with the hypothesis that they expect something in return.

Spiller, Pablo T. & Spitzer, Matthew L.
Judicial Choice of Legal Doctrines
8 J.L. ECON. & ORG. 8 (1992)

Spiller and Spitzer address the question of how a court of last resort decides the basis for its decisions when both constitutional and non-constitutional grounds are available. The authors base their analysis on the observation that statutory or regulatory language limits the range of Supreme Court decisions to a certain range that may or may not permit a constitutional or a non-constitutional basis for decision. In their model, choosing a constitutional reason for decision adds durability but subtracts specificity from the policy instruction given the other branches and levels of government. Their model is a complicated game involving several governmental "players" that represents each actor's optimal trade-off between competing values. In one example the decision in Metro Broadcasting v. FCC illustrates a crude trade-off between white and minority license applicants. The point is to model how the Court responds to the likely response of other political institutions, and the paper concludes with a normative disclaimer and a call for more research.

Spulber, Daniel F. & Besanko, David
Delegation, Commitment, and the Regulatory Mandate
8 J.L. ECON. & ORG. 126 (1992)

Game theorists view administrative agency discretion as a function of several structural features including, inter alia, the appointments process, inter-branch bargaining, statutory constraints, ex ante knowledge of economic parameters, and congressional oversight. The authors here present a technical treatment of the strategic interaction among the branches of government that arises through delegation. The model shows how Congress's regulatory mandate will differ with changes in each of these variables.

Zeppos, Nicholas S.
The Use of Authority in Statutory Interpretation: An Empirical Analysis; and Deference to Political Decisionmakers and the Preferred Scope of Judicial Review
70 TEX. L. REV. 1073 (1992); and 88 NW. U. L. REV. 296 (1993)

In each of these articles, Zeppos analyzes judicial review with empirical data--the success rate, roughly defined, of interest groups and Congress in judicial review. His theory bears out a public choice vision of lawmaking, suggesting that interest groups not only influence Congress's drafting but the court's interpretation as well.