Special Workshop Abstract

Public choice theory is an economic theory of politics. Consequently, it assumes instrumental rationality. In this paper, I reject several arguments against teaching public choice theory in law schools.

Rule following is not impervious to economic analysis. Instrumental rationality may lead an agent to follow rules: his current anticipation of his epistemic and motivational weaknesses may spark his current commitment to rules. Moreover, evolutionary public choice models can explain the ratios of opportunistic and rule-following behavior in a population.

Public choice explanations need not be ad hoc. For one thing, we may have independent evidence of the agent’s goals and beliefs. For another, evolutionary public choice models allow us to infer an agent’s goals or beliefs from his behavior, rather than hypothesizing ad hoc what such goals or beliefs are.

Will students of public choice internalize the baseness that characterizes typical public-choice agents? The fact that economists are reported to defect in experimental prisoner’s dilemmas may induce an affirmative answer. But such findings may only indicate that economists are differentially sensitive to the demands of rationality, as something different from being differentially self-interested. Moreover, why would the study of public choice lead us to internalize its behavioral hypotheses rather than to despise political actors? Finally, public choice can explain both genuine argument and opportunistic rhetoric, given institutional arrangements and initial compositions of groups. The law student familiar with public choice is better equipped to tell where, and to what extent, cynical accounts of legal discourse are appropriate.

Some critics object to teaching public choice because they find its commitment to efficiency unattractive. Anthony T. Kronman has argued that law professors who endorse (normative) law and economics will not be able to observe the (in his view) correct, “prudentialist” attitude (i.e., traditional law teaching) for a long time. To the extent that it involves a case-by-case balancing of incommensurable considerations, prudentialism is, Kronman says, incompatible with the “universalistic,” efficiency-driven claims of law and economics. Mutatis mutandis, this argument applies to teaching public choice.

But it is confusing to contrast efficiency with substantive principles of political morality, such as liberty, equality, or rights. Efficiency is arguably a necessary condition for the legitimacy of a policy or a social order. Moreover, valid moral principles may mandate us to teach invalid moral principles.

Must we cease to teach public choice if its predictions fail? Not necessarily. Even if predictions fail, teaching the theory on which we based those predictions may increase people’s knowledge. Such a theory may still be our most powerful predictive tool. It may, in addition, enable us to identify hidden factors. The discovery of Neptune is a famous example in this regard. But even if public choice could not profit in this way from its predictive failures, it would not follow that public choice is irrelevant to policymaking. We will be well advised to foreclose worst-case scenarios, i.e. those where public choice cynicism is true. We should make our institutions economize on virtue.