GS/Law 6761Fall 2007

Instructor: Ian Greene

Friday, October 19, 2007Beyond the classics: contemporary

approaches to the legal theory behind administrative lawFunctionalismCritical Legal TheoryFeminist legal TheoryPublic Choice Theory

Loughlin on FunctionalismRob Stokes

Martin Loughlin, Prof. of Public Law, London School of Economics

Allan Hutchinson: Critical Legal Theory“Crits and Cricket: A Deconstructive Spin”Adele MacLeod

Allan Hutchinson, Osgoode Hall Law School

Kathleen Lahey on Feminist Legal TheoryDenise de Sousa“On Silences, Screams and Scholarship: An Introduction to Feminist Legal Theory”

Kathleen A. Lahey was the lawyer for three of the B.C. couples who won the right to marry from the B.C. Court of Appeal as of July 8, 2003. She is the author of Are We 'Persons' Yet? Law and Sexuality in Canada (1999), and has published and consulted on a wide range of legal issues relating to equality and human rights. The founding editor of the Canadian Journal of Women and the Law, she has also served on various advisory boards, including the Sexual Orientation and Gender Identity Committee of the Ontario Bar Association, Egale Canada, and the Ontario Advisory Council on Women's Issues. She is a professor at Queen's University Faculty of Law.

Jerry Mashaw on Public ChoiceIan GreeneJerry Mashaw: Greed, Chaos and

Governance: Using Public Choice to Improve Public Law (1997) Jerry L. Mashaw is Sterling Professor of Law at Yale Law School, where

he teaches courses on administrative law, social welfare policy, regulation, legislation, and the design of public institutions. His many books include Administrative Law: Introduction to the American Public Law System, Bureaucratic Justice (1983), and Greed, Chaos, and Governance: Using Public Choice to Improve Public Law.

Review by Cass Sunstein

Public Choice TheoryPublic choice theory is the uses theory from the

discipline of economics to attempt to explain public policy development.

In general, public choice treats members of the public, elected officials, and members of the executive as motivated primarily by self-interest. In some ways, public choice theory is similar to Bentham’s theories of utilitarianism. Some public choice theorists invoke “game theory” (mathematical study of strategic interactions amongst people). There may be some parallels to the judicial test of the “rational man” or “rational person.”

George StiglerNobel prize in Economics, 1982Developed the “capture” theory. Government

regulatory agencies are prone to being “captured” by so that these groups can attempt to impact the enactment of laws and regulations in a self-interested way.

He also argued that most costs of production are relatively small, and companies don’t worry about small costs. The result is that they don’t worry about total costs very much, and thus fail to maximize profits. Most enterprises are therefore inefficient.

Kenneth ArrowNobel prize in economics, 1972His research analyses the making of decisions

using imperfect information, and the bearing of risk.

Election results rarely, if ever, represent “the public will.” There are too many variables that enter into the voting decision, and choices are malleable.Studies have shown that human being like to

express opinions even if they are not solid opinions. Eg. Studies about public ownership of electrical utilities.

James Buchanan Nobel prize in economics, 1986 Judges ought to apply U.S. “founding principles” – judicial

independence, separation of powers, protections of original individual rights – to counteract selfish tendencies of human nature.

“People who were supposed to know didn't really know what democracy was about…we were taking the tools of economics, looking at something like the structure of American politics in the way James Madison had envisioned it. That is, it was clearly not a majoritarian democracy, which would be the parliamentary model.… We were the first to start analyzing the Constitution from an economic point of view. … I considered us to be simply writing out in modern economic terms more or less Madison's framework of what he wanted to do, as opposed to anything new and different.”

Madison believed in “checks & balances” in the constitution to fight against aristocracy and corruption. Principal author of the constitution. (However, after experience as Jefferson’s secretary of state and as President, he reversed some earlier postiions – eg. in the end supported high tariffs to protect factories opened during the War of 1812.

Mashaw’s contributionInterest group influence needs to be checked. How?Leaders of federal bureaucracies ought to make

important political decisions. Bureaucratic controls in the executive ensure greater accountability than in the elected branches. Bureaucrats need enough independence to protect from “capture.”

Politicians are prone to serving particular interests. Eg California law that prohibited retail car dealerships within 300 miles of existing ones – clear attempt to placate existing dealers. Court was persuaded that this was a reasonable attempt to prevent unfair trade practices!

Courts should attempt to serve the “public interest” when there is doubt. As per Arrow, elections do not necessarily reflect the “public interest.”

People act from both altruistic and selfish motives.