Theoretical Perspectives on Public Law and Administration

1. Theoretical Perspectives on Public Law and Administration GS/Law 6761 Fall 2007 Instructor: Ian Greene

2. Friday, October 19, 2007 • Beyond the classics: contemporary approaches to the legal theory behind administrative law • Functionalism • Critical Legal Theory • Feminist legal Theory • Public Choice Theory

3. Loughlin on Functionalism • Rob Stokes • Martin Loughlin, Prof. of Public Law, London School of Economics

4. Allan Hutchinson: Critical Legal Theory • “Crits and Cricket: A Deconstructive Spin” • Adele MacLeod • Allan Hutchinson, Osgoode Hall Law School

5. Kathleen Lahey on Feminist Legal Theory • Denise 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.

6. Jerry Mashaw on Public Choice • Ian Greene • Jerry 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

7. Public Choice Theory • Public 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.”

8. George Stigler • Nobel prize in Economics, 1982 • Developed 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.

9. Kenneth Arrow • Nobel prize in economics, 1972 • His 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.

10. 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.

11. Mashaw’s contribution • Interest 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.