Greed, Chaos, and Governance: Using Public Choice to Improve Public Law

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Yale University Press, 1999 - Law - 231 pages
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Public choice theory should be taken seriously--but not too seriously. In this thought-provoking book, Jerry Mashaw stakes out a middle ground between those who champion public choice theory (the application of the conventional methodology of economics to political science matters, also known as rational choice theory) and those who disparage it. He argues that in many cases public choice theory's reach has exceeded its grasp. In others, public choice insights have not been pursued far enough by those who are concerned with the operation and improvement of legal institutions.

While Mashaw addresses perennial questions of constitutional law, legislative interpretation, administrative law, and the design of public institutions, he arrives at innovative conclusions. Countering the positions of key public choice theorists, Mashaw finds public choice approaches virtually useless as an aid to the interpretation of statutes, and he finds public choice arguments against delegating political decisions to administrators incoherent. But, using the tools of public choice analysts, he reverses the lawyers' conventional wisdom by arguing that substantive rationality review is not only legitimate but a lesser invasion of legislative prerogatives than much judicial interpretation of statutes. And, criticizing three decades of "law reform," Mashaw contends that pre-enforcement judicial review of agency rules has seriously undermined both governmental capacity and the rule of law.
 

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Contents

The Challenge of Positive Political Theory
1
The Quest for Usable Knowledge
30
Public Choice and Rationality Review
50
Legislatures Deals and Statutory Interpretation
81
Explaining Administrative Process
106
Should Administrators Make Political Decisions?
131
The Judicial Review Game
158
Separated Powers and Regulatory Policymaking
181
Public Choice Pragmatics
199
Notes
211
Copyright

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Page 221 - Michael C. Jensen and William H. Meckling, "Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure," Journal of Financial Economics 3 (1976): 305-59; R.

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About the author (1999)

Jerry L. Mashaw is Sterling Professor of Law at Yale Law School. He is the author of Due Process in the Administrative State and Bureaucratic Justice: Managing Social Security Disability Claims, both published by Yale University Press.

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