April 2011 Vol. 109 No. 6 THE REVIEW

Explaining the Importance of Public Choice for Law

D. Daniel Sokol

Law is dynamic, as law shapes behavior. Behavior also shapes law. Public choice can help us to understand this dynamic behavior. At its core, public choice is the use of economics to understand political science. Public choice thus addresses various opportunities for and constraints on behavior in public life in a manner akin to how economics does so in private life (the market). Public choice also assumes rational actors who maximize their utility. Since the 1960s, the use of public choice has had a profound impact in the academic study of law by both those inside and outside of law schools. Given the importance of policy to the law, it is rather odd that the study of public choice has not been a staple of the law school curriculum.

Students are likely to be introduced to public choice in classes that specialize in legislation. Yet, outside of administrative law and legislation, most statutory classes (commercial, corporations, environmental, and tax to name just a few) do not use public choice as a major explanatory tool for policy choices in a given area of law. In common law classes, public choice may often be overlooked altogether.

The next generation of government officials, business leaders, and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law's interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decisionmaking within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Stearns and Todd Zywicki.

 

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