Greed, Chaos, and Governance


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Using Public Choice to Improve Public Law

Jerry L. Mashaw

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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.

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.

"Greed, Chaos, and Governance will capture the attention of those who love public choice, those who hate it, and those who regret that they feel obliged to learn about it. For the lovers and the haters, the book argues convincingly that public choice has deep faults, but nonetheless sheds important light on governmental structure. For the regreters, the book provides a lucid introduction."—David Schoenbrod

"This book combines an appreciation of the value both of public choice theory and the criticisms mounted against it. Mashaw seeks to put public choice to constructive use in institutional-legal reform. He suggests, properly, that only a non-romantic vision of political reality can be of assistance in generating ideas for reform in the prevailing cynicism at the century's turn."—James M. Buchanan, Advisory General Director, Center for Study of Public Choice

"Mashaw's richly insightful and highly readable book asks whether public choice theory ("greed" in the title) or voting theory ("chaos") is helping in evaluating practical ways of improving public law."—Michael Asimow, Annals of the American Academy of Political and Social Science

"This book represents something that today is all too rare: a scholarship of broad sympathies and analytical rigour. It is a book that should be read by all those interested in public choice and its complex relationship to political culture and institutions."—Bradley C.S. Watson, Canadian Journal of Political Science

"Offers an attractive and unusual combination of the iconoclastic and the reasonable. . . . Greed, Chaos, and Governance like the prizewinning work that underlies it, sheds a great deal of light."—Cass R. Sunstein, New York Times Book Review

"[Mashaw's] book is highly relevant for newcomers to public choice as well as experts in the field who seek a reasoned critique and application of the literature to questions of legal interpretation and institutional design. Public law scholars and students of U.S. political institutions, outside the realm of public choice, will also find this book highly useful."—Michael Esler, Perspectives on Political Science

"The work is well-written, insightful and provocative. . . . Many public administrators and legal scholars—whether they ultimately agree with Mashaw that there is some opportunity for employing public choice methods to improve public law—will enjoy the larger, substantive discussion of the role of agencies and courts in effecting modern democratic government."—Phoenix

"Mashaw's deep understanding of the administrative state makes his discussion unique. His book is well written, witty at times, and solidly argued."—Daniel A. Farber

Winner of the1998 Annual award for Scholarship in Administrative Law given by the American Bar Association
ISBN: 9780300078701
Publication Date: January 11, 1999
241 pages, 6 1/8 x 9 1/4
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