A Public Choice Progressivism, Continued
43 Pages Posted: 26 Mar 2001 Last revised: 4 Mar 2014
Abstract
It is a widely held belief among legal scholars that public choice scholarship promotes a cynical view of politics and law, and of the administrative state in particular. In a recent article (Geo. L. J., 2000), Frank Cross and I offered a neo-Progressive defense of delegation expressed in public choice terms. Using a simple formal model, we demonstrated why rational voters might prefer delegation, and why that preference is consistent with our Constitutional design. Of course, our argument did not resolve the longstanding disputes over the wisdom of either delegation or public choice theory: both have plenty of critics. In this essay, I build upon on that earlier argument in two ways. In Part I of this essay, I examine the roots of some legal scholars' dissatisfaction with economic models in administrative law, and conclude that it is the product of longstanding scholarly disputes over analytical goals and methods, disputes that become further complicated when social science analyses are imported into a discipline (legal scholarship) that does not classify itself as a science at all. In Part II of the essay, I build on our earlier analysis by offering additional examples of how administrative law scholars might use public choice insights to further support the case for delegation. I note that while both the legislative process and the administrative process can be undemocratic (in the Arrovian sense), the latter is less susceptible to manipulation by special interests than the former. This is true not because bureaucrats are more selfless than politicians, but because of the different structures of the two decision processes.
Keywords: Administrative law, Nondelegation doctrine, Public choice, Regulation
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