Content and purpose:
“Would you say the government is pretty much run by a few big interests looking out for themselves or that it is run for the benefit of all people?” What would then be the consequences of your answer for designing or inquiring into the consequences of constitutional rules? Elaborating on this very simple question from an economic point of view (and especially public choice) reveals itself to be extremely fruitful to revisit classical legal doctrines and concepts.
The purpose of this course is to offer students some economic tools and thoughts to critically think about constitutional law and public law in general; to complement their knowledge of the “what?” with some insights about the “why?”.
Tentative schedule:
Lecture 1. Looking at constitutional law without romance
Ramseyer, J. Mark, Public Choice, in Posner, Eric, Chicago Lectures in Law and economics, 2000
Mikva, Abner, Symposium on the Theory of Public Choice: Forward, 74 VA. L. Rev. 167, 1988
Lecture 2. Representation and democratic election (or why democracy is the worst form of government on earth except for all the rest)
Cohen, Linda & Spitzer, Matthew, Term Limits, 80 Geo. L. J. 477, 1992
Lecture 3. Legislative process (or why the concept of legislative intent is meaningless)
Shepsle, Kenneth, Congress is a “they” not an “it”: legislative intent as an oxymoron, 12 Int. Rev. Law and Econ. 239 (1992)
Lecture 4. Rent seeking, the basic (is public interest the purpose of regulation?)
Stigler, George, The theory of economic regulation. Bell Journal of Economics and Management Science 2 (spring): 3-21
Lecture 5. Rent seeking and the choice of a regulatory strategy, the case of environmental law (why command and control strategy is often used despite its inefficiencies)
Hahn, Robert, Economic Prescriptions for Environmental Problems, How the Patient Followed the Doctor’s Order, 1989, Journal of Economic Perspectives, vol 3, pp 95-114
Lecture 6. Some thoughts about federalism
Macey, Jonathan, Federal Deference to local regulators and the economic theory of regulation: toward a public choice explanation of federalism, 76 VA. L. Rev. 265 (1990)
Bibliography, some classics:
ARROW K., Social Choice and Individual Values (1951), New Haven, Yale University Press, 1963
BLACK D., The Theory of Committees and Elections, Cambridge, Cambridge University Press, 1958
BUCHANAN J., TULLOCK G., The Calculus of Consent (1962), Ann Arbor, The University of Michigan Press, 1965
COOTER R., The Strategic Constitution, Princeton, Princeton University Press, 2000
DOWNS A., An Economic Theory of Democracy, New York, Harper and Row, 1957
OLSON M., The Logic of Collective Action, Public Goods and the Theory of Groups (1965), Cambridge, Harvard University press, 1971