Greed, Chaos, and Governance

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

JERRY L. MASHAW
Copyright Date: 1997
Published by: Yale University Press
Pages: 241
https://www.jstor.org/stable/j.ctt32br16
  • Cite this Item
  • Book Info
    Greed, Chaos, and Governance
    Book Description:

    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.

    eISBN: 978-0-300-14742-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-x)
  4. 1 The Challenge of Positive Political Theory
    (pp. 1-29)

    Commenting on his portrait of Gertrude Stein, Pablo Picasso is reported have said: “Everybody thinks she is not at all like her picture, but never mind, in the end she will manage to look just like it.”

    Picasso’s statement may have been a product of his famous ego, but it contains an important insight. We are often the captives of our pictures of the world, and in the end, if the world does not lookjustlike them, their influence our perceptions is nevertheless profound.

    The pictures that I want to discuss are not graphic representations but theories: verbal descriptions...

  5. 2 The Quest for Usable Knowledge
    (pp. 30-49)

    Are all those bad things that positive political theory is saying about our political life true? “No” would be a comforting answer. It might allow us to reimagine politics as the pursuit of principle and the public interest. It might suggest that we need not worry too much about the careful design of governmental institutions so long as we make sure that they are responsive to the people.

    But surely this is a counsel of folly. Few human attempts at governance have been either unquestionably effective or enduring. It can hardly be the case that all unhappy instances have but...

  6. 3 Public Choice and Rationality Review
    (pp. 50-80)

    For nearly two hundred years American lawyers, judges, and legal academics have been looking for a fully persuasive theory that would justify the judicial invalidation of statutes because they fail to satisfy the judiciary’s understanding of what the Constitution requires. To many outside the legal profession, this must seem an extremely curious enterprise. For one thing, federal judges have been exercising the power to declare statutes unconstitutional since the early nineteenth century. For another, over these two centuries the Supreme Court has invalidated less than one congressional statute per year. Moreover, in most cases the ruling of unconstitutionality affected only...

  7. 4 Legislatures, Deals, and Statutory Interpretation
    (pp. 81-105)

    The United States is often referred to as a “common law” country. Although trivially true as a means for distinguishing the legal traditions of England and its former colonies from the civil law culture of the remainder of Europe, the notion that twentieth-century American law is primarily common is preposterous. Americans remain preoccupied with the drama of cases, at or just below the surface of nearly all legal decisionmaking lies a statute, perhaps a whole constellation of them.

    This is peculiarly true in the public law realm — the domain of relationships governments and between the government and private parties. Save...

  8. 5 Explaining Administrative Process
    (pp. 106-130)

    Most public law is legislative in origin but administrative in content. Statutes empower and instruct administrators, but only at a relatively general level. This is obvious in many statutory regimes. When Congress tells the Interstate Commerce Commission to disapprove “unreasonable or discriminatory” railroad rates, the Federal Communications Commission to license broadcasters when in the “public interest,” or the Food and Drug Administration to regulate foods and drugs for “safety,” it has not said much. The operative law will emerge from the rules adopted and the decisions handed down by the administrators who implement these statutes.

    Over the past several decades...

  9. 6 Should Administrators Make Political Decisions?
    (pp. 131-157)

    Virtually all agency action begins with a statute. More important for purposes of administrative law, statutes provide the legitimating standard for much of agency decisionmaking. Save for a few executive functions specified the Constitution, such as the powers to grant pardons and negotiate treaties, the agent — an executive officer or the administrative agency — has only those powers provided by its principal — the legislature. Legislative specification of agency jurisdiction, purposes, and powers thus provides the normative justification for administrative authority and implies an instrumental conception of administration — agencies are created and empowered in order to implement policy choices made in the...

  10. 7 Legal Control of Administrative Policymaking: The “Judicial Review Game”
    (pp. 158-180)

    As late as the presidency of John F. Kennedy, the principal image of federal administrative action was the adjudication of a case — a prosecution by the Federal Trade Commission, an enforcement action by the National Labor Relations Board, a licensing proceeding before the Federal Communications or Federal Power Commissions, or a rate proceeding at the Interstate Commerce Commission.¹ More than thirty years later, when Americans think of “regulation” they tend to think of the adoption of general rules concerning workplace safety by the Occupational and Safety Health Administration, or of rules governing air or water quality by the Environmental Protection...

  11. 8 Separated Powers and Regulatory Policymaking
    (pp. 181-198)

    As portrayed in Chapter 7, preenforcement review combined with highly uncertain outcomes and interest group competition produced a legal stranglehold on the regulatory process. The courts functioned as robed roulette wheels churning out results — either “case dismissed” or “remanded to agency for further development” — in a fashion that approximated chance. Delaying review where possible was suggested as a device for dampening the enthusiasm of the players in this apparently dysfunctional regulatory roulette.

    To some degree, the standard complaints about political control of agency rulemaking by the president or the Congress replicate the judicial review scenario. But there are crucial differences....

  12. 9 Public Choice Pragmatics
    (pp. 199-210)

    Although the precise issues change from decade to decade — indeed, year to year or week to week — American public law is continuously preoccupied with the general issues that have been canvased in the preceding pages: How actively should judges review statutes for constitutionality or administrative judgments for arbitrariness? What is the best way to interpret statutes? How does the separation of powers really work? What should be the of administrative action in a liberal democratic constitutional regime? My purpose has been to rethink these issues in the light of public choice ideas: voting theory, interest group theory, and game theory...

  13. Notes
    (pp. 211-228)
  14. Index
    (pp. 229-231)