Lost in Translation: Social Choice Theory is Misapplied Against Legislative Intent

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow\u27s famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as legislators are omniscient and legislators have infinite resources for changing law and policy. We demonstrate that adding more realistic assumptions to models of social choice theory yields very different theoretical results-including ones that allow for meaningful inferences about legislative intent. In all of the cases we describe, important aspects of social choice theory were lost in the translation from abstract formalisms to real political and legal domains. When properly understood, social choice theory is insufficient to negate legislative intent

The Thayer Method: Student Active Learning with Positive Results

Graduation from West Point requires successful completion of four courses in the mathematical sciences. These core mathematics courses include topics in discrete dynamical systems, differential and integral calculus (single variable and multivariable), differential equations, linear algebra, probability, and statistics. The instructional system employed throughout the core is the Thayer Method, named for Colonel Sylvanus Thayer, the Father of the Military Academy. In the Thayer Method, traces of cooperative education and discovery learning are evident. It is quintessential active learning. The West Point catalyst is the fundamental principle that cadets are responsible for their own education

How is Constitutional Law Made?

Bismarck famously remarked: Laws are like sausages. It\u27s better not to see them being made. This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court\u27s doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing social choice economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens of social choice, the Court\u27s constitutional precedent becomes more coherent. Stearns aims to present an account that is positive (i.e., justifies the Court\u27s rules based upon the historical and case evidence) rather than normative (i.e., criticizes the substantive content of those rules) (pp. 6, 63-67). In particular, Stearns logically explains the decisions involving standing (i.e., whether a plaintiff has the right to sue), which legal scholars have uniformly concluded are irreconcilable and thus reflect either intellectual sloppiness or unstated political motives. Professor Stearns\u27s thesis is radical, for it compels us to look at constitutional law in an entirely new way. At the same time, however, his approach is conservative because it depends on the pre-Realist premise that constitutional law consists of binding legal rules that the justices try to interpret and apply in a principled way. Unlike many academics, Stearns takes the justices\u27 own statements of doctrine, as expressed in their opinions, quite seriously (p. 5) and attempts to justify them using social choice analysis.2 Stearns displays a unique ability to convey extremely complex legal, economic, and political ideas in a clear and precise manner. His work is especially valuable because it is accessible to scholars in a variety of fields, and it will. force them to reconsider their analytical frameworks. Perhaps the greatest strength of Stearns\u27s book is that he presents a grand unified theory of the Court\u27s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, however, because he tends to read precedent and the historical evidence to fit his thesis, even when other explanations might be more persuasive. In this Review, we will explore two such alternatives, grounded in political science and constitutional theory. We hope to show that these disciplines are at least as effective as economics in illuminating constitutional lawmaking

Review of Colin Dayan’s The Law Is a White Dog: How Legal Rituals Make and Unmake Persons

Professor Dean Spade reviews Colin Dayan’s The Law Is a White Dog: How Legal Rituals Make and Unmake Persons

Public Choice Theory and the Fragmented Web of the Contemporary Administrative State

In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaw\u27s arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken

Public Choice Theory and the Fragmented Web of the Contemporary Administrative State

Since World War II, public choice theory - defined broadly as the application of the assumptions and methodology of microeconomics to describe or predict the way public officials exercise power - has grown from a fledgling movement, gaining mainstream acceptance and respect for its insights into voting behavior, judicial decisionmaking, and other public actions. Although a theory first explored by economists and political scientists, public choice\u27s normative insights have earned credibility in recent years in academic legal literature. Public choice\u27s acceptance in the law school curriculum is demonstrated by the recent publication of course material on the topic. However, despite public choice\u27s self-proclaimed positive nature - as a descriptive and predictive tool - it continues to have its share of vigorous opponents, who angrily reject its pessimistic model of human behavior, and suspect its analysis of being driven by an underlying dislike of regulation and redistribution. Theories of administrative law have also been the subject of much discussion in the legal literature over the past half-century. Many contemporary scholars have attempted to weave administrative law statutes and cases into overarching theories of bureaucracy. At the same time both bureaucracy and administrative law have had a fair number of vigorous critics, some rejecting delegation as inherently antidemocratic, others condemning the actions of bureaucrats as without common sense, still others decrying theories of bureaucracy as incoherent and illegitimate or the administrative state as unconstitutional

Contrasting the Art of Economic Science with Pseudo-Economic Nonsense: The Distinction Between Reasonable Assumptions and Ridiculous Assumptions

In this paper I explain that law professors who claim to have proven that the stock market cannot be efficient have based their case on economic models contain hidden assumptions which are nonsense. Specifically, the assumption that investors have no wealth constraint and can borrow unlimited amounts of capital is nonsense. I further explain that the frequently touted claim that many investors are irrational is not relevant to the debate about market efficiency because when real world characteristics of financial markets are imposed - markets clear, budget constraints are satisfied, and investors face credit limits - markets will be efficient regardless of the mental capacity of investors