New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

LAW AND PUBLIC CHOICE (DANIEL FARBER & ANNE JOSEPH O'CONNELL EDITORS, ELGAR 2009)

Abstract

This paper is a draft chapter for an edited collection on Law and Public Choice being published by Edward Elgar and edited by Dan Farber and Anne Joseph O'Connell. The chapter provides an overview of public choice literature regarding three aspects of federalism - exit-based normative justifications for federal regimes, voice-based normative justifications for federal regimes, and positive theories for how federal regimes are sustained through the political process. In general, I suggest that the most promising trend in public choice theory is the effort of economists, political scientists, and lawyers to tackle the thorny question of "voice" in federal regimes - that is, how subnational politics differs in federal regimes from the politics of unitary states. Moreover, the case for federalism based on exit critically depends on the argument for federalism based on improvement of "voice." Otherwise, migration from one city or state to another to escape predatory regimes would simply be pointless movement out of a "Leviathan" frying pan into a "Leviathan" fire. Public choice theorists seem to have an inveterate suspicion of claims that subnational government facilitates political participation, perhaps because the entire tradition of public choice is based on the theoretical impossibility that collective action can accurately represent individuals' preferences and values. Yet nothing in the conventional account of how decentralization improves political "voice" is inconsistent with the abstract principles of public choice theory.

Date of Authorship for this Version

February 2009