Conservative & Libertarian Legal Scholarship: Jurisprudence

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XVII. Jurisprudence
(See also the selections on interpretive theory in Section V-Constitutional Law)

Introductory Materials and the Nature of Law

Edward H. Levi, An Introduction to Legal Reasoning (1949). A classic exposition of common law judging.

H.L.A. Hart, The Concept of Law (2d ed. 1994). An enormously influential attempt to answer the question, “What is law?” More specifically, Hart addresses “three recurrent issues: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules?”

Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence (rev. ed. 1990). This widely admired introductory text discusses timeless questions regarding the nature of law, the relation between law and morals, and crime and punishment. It also treats the philosophy of private law and law and economics.

Friedrich A. Hayek, Law, Legislation & Liberty (3 vols., 1973-79); Friedrich A. Hayek, The Constitution of Liberty (1960). Hayek, the 1974 Nobel laureate in economics, was one of the most important social theorists of the twentieth century. For law students, Hayek’s work on the nature and importance of the rule of law and the concept of “spontaneous order” are perhaps his most important contributions. Two of Hayek’s most influential articles are available on-line at For an interesting interview of Hayek see the July 1992 issue of Reason magazine, available on-line at See also Richard Posner, Hayek, Law, and Cognition, 1 NYU J. L. & Liberty 147 (2005) (describing and evaluating Hayek’s theory of law and relating it to his theory of cognition, which provides the basis of his entwined legal and economic theories).

Michael W. McConnell, Four Faces of Conservative Legal Thought, 34 L. Sch. Record 12 (1988); Mary E. Becker, Four Faces of Liberal Legal Thought, 34 L. Sch. Record 14 (1988). These two essays, which appeared in the alumni magazine of the University of Chicago Law School, provide a brief introduction to schools of thought currently represented in the legal academy. Professor McConnell describes traditional conservatism, libertarianism, law and economics, and social conservatism. Professor Becker treats traditional liberalism and constitutional interpretation, republicanism, critical legal studies, and feminism.

Frederick Pollick & Frederic William Maitland, The History of English Law (2 vols., reissued 1978). The classic work of English legal history, “Before the Time of Edward I” (1272-1307).

C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract (1949); Theodore F.T. Plucknett, A Concise History of the Common Law (5th ed. 1956). Two other standard reference works in English legal history. Richard A. Posner, Blackstone and Bentham, 19 J. L. & Econ. 569 (1976). A defense of William Blackstone’s Commentaries on the Laws of England (1765-69) against the critique of Jeremy Bentham.

Symposium: The Crisis in Legal Theory and the Revival of Classical Jurisprudence, 73 Cornell L. Rev. 281 (1988). This Federalist Society symposium featured panel discussions on the classical legal tradition, legal realism, originalist theories of constitutional interpretation, coordinate branch construction, and stare decisis. Participants included Raoul Berger, Lea Brilmayer, Richard Epstein, Charles Fried, John Harrison, Patrick Higginbotham, Michael Moore, and Burt Neuborne.

Jules Coleman, Risks and Wrongs (1992). A rethinking of the jurisprudential foundations of contract and tort. For extensive commentary on this book, see Symposium on Risks and Wrongs, 15 Harv. J.L. & Pub. Pol’y 621 (1992).

Internet resources: There is a great deal of information on philosophy, generally speaking, available on the Internet, although remarkably little on jurisprudence or philosophy of law in particular. Good collections of general philosophy materials are found through the home page of the American Philosophical Association Also useful are the “Stanford Encyclopedia of Philosophy,”, the “Internet Encyclopedia of Philosophy,”, and “A Dictionary of Philosophical Terms and Names,”

Judicial Behavior

Symposium-Judicial Decisionmaking: The Role of Text, Precedent, and the Rule of Law
, 17 Harv. J.L. & Pub. Pol’y 1 (1994). This Federalist Society symposium included panels on the enterprise of judging, stare decisis and the Constitution, text and history in statutory construction, non-legal theory in judicial decisionmaking, and the Supreme Court as a political institution. Authors featured here include Lillian BeVier, Frank Easterbrook, Lino Graglia, William Kristol, Gary Lawson, Jonathan Macey, Thomas Merrill, Russell Osgood, Raymond Randolph, and Stephen Williams. Richard Epstein, Simple Rules for a Complex World (1995). Professor Epstein specifies six “simple rules” for the satisfactory operation of a legal system: “self-ownership, or autonomy; first possession; voluntary exchange; protection against aggression; limited privilege for cases of necessity; and takings of property for public use on payment of just compensation.” He argues that these rules “have the virtue of offering solutions for 90 to 95 percent of all possible situations. Never ask for more from a legal system. The effort to clean up the last five percent of the cases leads to an unraveling of the legal system insofar as it governs the previous 95 percent.” Epstein then analyzes a number of areas of common law and regulatory law using these “simple rules.” Students can benefit greatly from Epstein’s chapters on particular subject areas, and will find his critique of the desire for “perfect justice” a refreshing change from the utopian ruminations of the classroom.

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). In his 1989 Holmes Lecture at Harvard, Justice Scalia offered a thought-provoking exploration of the “dichotomy between ‘general rule of law’ and ‘personal discretion to do justice.’” But see Frank Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism? 73 U. Colo. L. Rev. 1401 (2002). In this conference address Judge Easterbrook presents data he collected demonstrating that all nine of the justices on the Supreme Court as then constituted meet his definition of “activist,” particularly insofar as they use the canon of construction against reading a statute as unconstitutional to promote their own policy preferences.

Alex Kozinski, What I Ate for Breakfast and Other Mysteries of Judicial Decisionmaking, 26 Loy. L.A. L. Rev. 993 (1993). In this brief essay, Judge Kozinski critiques “legal realism” and offers his own explanation of judicial behavior. Given Kozinski’s wry wit (example: “as far back as I can remember in law school, the notion was advanced with some vigor that judicial decision making is a farce”), his writings are generally quite entertaining.

Judicial Review as a Defense Against Federal Power

In recent years—particularly after the decisions of the Rehnquist Court in Lopez and Morrison—the concept of judicial review of the constitutionality of federal statutes has come under attack.  Some useful analyses of the nature of judicial review include:

Bradford Clark, Unitary Judicial Review, 72 Geo. Wash. L. Rev. 319 (2003). Professor Clark argues that, given the Founders’ understanding of the source of individual rights vis-a-vis the federal government, courts should take a unitary approach to judicial review under the Supremacy Clause and enforce both the Bill of Rights and the limits of federal power.

Saikrishna Prakash & John Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887 (2003). A defense of the authority of the courts to ignore unconstitutional legislation, based upon constitutional text and structure and collateral historical evidence.

Philip Hamburger, Law and Judicial Duty (2008). Professor Hamburger marshals historical evidence to argue that what we call “judicial review” is no more than a long-understood duty of judges to decide a matter in accordance with the law of the land.

Eric Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (2007). Posner and Vermeule argue that courts should engage in the degree of deference to executive actions traditionally observed during times of crisis, rather than follow the libertarian argument that courts should strike down measures threatening to civil liberties with the same degree of scrutiny they would apply under normal circumstances.  See also Gary Lawson, Ordinary Power in Extraordinary Times, 87 B. U. L. Rev. 289 (2007) (agreeing that Posner and Vermeule are correct on policy grounds and contending further that their position is consistent with the original meaning of the Constitution).

Originalist Jurisprudence

Roger Pilon, Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles, 68 Notre Dame L. Rev. 507 (1993). According to Roger Pilon, “[t]he idea that the purpose of government is to solve the private problems of the living has always been with us, but never have political and cultural conditions so encouraged it.” Because of this lamentable state of affairs, Pilon suggests that we return to our Founding principles in order to rediscover the “connection between freedom and personal responsibility.”

Ronald D. Rotunda, Original Intent, the View of the Framers, and the Role of the Ratifiers, 41 Vand. L. Rev. 507 (1988). Rotunda offers a thoughtful defense of the imperative that courts follow the intent of the framers of the Constitution, and further argues that “[w]hen we talk about the framers’ intent, we really ought to be more precise and refer to the ratifiers’ intent . . . .”

Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007).  A readable guide to the Federalist Papers along with an informed discussion of their context and use by generations of judges and legal scholars.

John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 Geo. L. J. 1693 (2010).  An argument that originalist interpretation of constitutional provisions is more likely to yield substantively superior consequences, because the strict supermajority under which the clauses were originally enacted was likely to have resulted in the most desirable provisions.

Randy Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 724 (2006). Professor Barnett argues that Scalia’s shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text allows him to escape originalist results that he finds to be objectionable under three circumstances: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) when he chooses to ignore originalism to avoid sufficiently objectionable results. Barnett contends that Scalia is not an originalist at all.

John Harrison, On the Hypotheses That Lie at the Foundations of Originalism, 31 Harv. J.L. & Pub. Pol’y 473 (2008). Professor Harrison refutes the position, held by Judge Bork, that originalism has the capacity to restrain interpreters from simply deciding cases according to what they think is the good.

Natural Law Jurisprudence

Robert George, In Defense of Natural Law (2001). One of the greatest contemporary scholars of natural law, Professor George seeks to show how contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. See also Robert George, Making Men Moral: Civil Liberties and Public Morality (1995) (a critique of modern liberal jurisprudence arguing that criminal prohibition of “victimless” moral crimes can play a legitimate role in maintaining a moral environment conducive to virtue and inhospitable to at least some forms of vice.)

John Finnis, Aquinas: Moral, Political, and Legal Theory (1998). A review of Thomas Aquinas’ thought on morality, politics, law, and method in social science, with discussion of his contribution to the jurisprudential debates of today.

William Wagner, Christianity and the Civil Law: Secularity, Privacy, and the Status of Objective Moral Norms, 71 St. John’s L. Rev. 515 (1997). A review of the thought of Aquinas and Augustine concluding that, while the objective moral norm leading the Church to call for the legal prohibition of abortion is that of justice, the Church’s position flows not only from concern for the unborn child, but for the ramifications of abortion on demand for the fundamental legitimacy of the civil law.

Charles Rice, Some Reasons for a Restoration of Natural Law Jurisprudence, 24 Wake Forest L. Rev. 539 (1989). Professor Rice discusses, among other defenses, the “protective” function of natural law against the imposition of unjust laws.

Phillip Johnson, Some Thoughts on Natural Law, 75 Calif. L. Rev. 217 (1987). A very informative explanation and defense of natural law reasoning. Suggests that there are serious problems with basing legal rules and institutions on modern philosophical theories, which stress wealth maximization, moral relativism, or wealth redistribution.

The Interaction Between Law and Ideology

Feminism, Sexual Distinctions, and the Law
, 18 Harv. J.L. & Pub. Pol’y 321 (1995). This Federalist Society symposium examined the impact of feminist theory on various areas of law and policy. Articles by Akhil Amar, Lillian BeVier, Richard Epstein, Elizabeth Fox-Genovese, Carolyn Graglia, Gary Lawson, Daniel Polsby, Jennifer Roback, Carol Rose and J. Harvie Wilkinson, among others.

Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggles (1987). In this short, thoughtful book Sowell contrasts “constrained” and “unconstrained” views of human nature, and explains how these differing views of the world generate political differences. The observant student will see many examples of this same dichotomy in the legal realm. Sowell’s web site contains his recent speeches and links to many of his columns for Forbes magazine,

J. Harvie Wilkinson III, Why Conservative Jurisprudence is Compassionate, 89 Va. L. Rev. 753 (2003).  A spirited defense of the conservative movement as a compassionate movement by one of the country’s leading jurists who identifies the two principal developments that led to conservatives being labeled “uncompassionate” as: the rise of law-and-economics, and the fondness for bright-line rules.

Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (1990). Hailed by one reviewer as “one of the most ambitious works of legal history to appear in living memory.” James Q. Whitman, Law and the Pre-Modern Mind, 44 Stan. L. Rev. 205 (1991). As Whitman puts it, Kelley explores “how [continental] lawyers perceived the human world during the many centuries before the work of perceiving the human world became the preserve of social scientists.”

Critiques of Critical Legal Studies

The Federalist Society, A Discussion on Critical Legal Studies at the Harvard Law School (1985). Taken from a 1985 symposium that included Harvard professors Robert Clark, Duncan Kennedy, Paul Bator, and Abram Chayes, this monograph features a worthwhile exchange on the influence of the Critical Legal Studies movement at Harvard.

John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, Or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84 (1995). Argues that the Crits’ argument that the law is (often? always?) “indeterminate” leads, logically, not to nihilism but to “the unfinished project of the legal realists,” which is today being pursued by “public choice scholars.”

Ernest van den Haag, Politics against Law, 82 Mich. L. Rev. 988 (1984) (reviewing The Politics of Law: A Progressive Critique (David Kairys, ed., 1982)). Members of the Critical Legal Studies movement say that law legitimates the existing social order. Professor van den Haag says, in effect, “So this is a surprise?”

Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222 (1984). A blistering attack on the Critical Legal Studies movement by the then-dean of the Duke Law School. Carrington argues that Crits, by virtue of their belief that law is a mirage, are under “an ethical duty to depart the law school, perhaps to seek a place elsewhere in the academy.” For a look at the controversy this article ignited, see the exchange of correspondence in “Of Law and the River,” and of Nihilism and Academic Freedom, 35 J. Legal Educ. 1 (1985).

Phillip E. Johnson, Do You Sincerely Want To Be Radical?, 36 Stan. L. Rev. 247 (1984). A searching critique of the philosophical claims of Critical Legal Studies, as well as its inability to articulate a radical “alternative to a way of thought [i.e., liberalism] that they decisively reject.”

Institutional Design and the Legal System

Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (1991). A critique of social engineering by the courts, focusing on the areas of civil rights and abortion. For a treatment of the limits of social policy making via litigation and judicial decrees, see Donald L. Horowitz, The Courts and Social Policy (1977).

Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978). This well-known essay, compiled from Professor Fuller’s class materials and copious personal notes, addresses the limited utility of judicial resolution of controversies. The article presents an overview of the proper role of judges and lawyers, and the legitimate scope of the court’s jurisdiction. Fuller questions judicial efforts to resolve complex “polycentric” cases, and he calls for more negotiation among private parties and less reliance on the litigation process.

Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983). A landmark work of legal history scholarship, ably reviewed in Mirjan R. Damaska, How Did It All Begin?, 94 Yale L.J. 1807 (1985). Damaska provides a good overview of Berman’s core thesis “that distinctively Western legal institutions came to life about nine centuries ago in a violent upheaval of revolution, in which the Church of Rome established its independence from domination by emperors, kings, and feudal lords.” Damaska’s bottom line is that Berman’s book is “indispensable to anyone who wishes to understand the distinctive features of Western civilization.”

Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (1994). How should society choose which institutions-courts, legislatures, agencies, the market-will answer questions of right and entitlement? Put differently, how are we to assess the “institutional competence” of these alternatives? This problem fascinated the Legal Process scholars of the 1950s-notably Henry Hart and Albert Sachs. However, the Hart and Sachs approach to this question was influenced by the more sanguine understanding of government power dominant at the time. In his recent book, Professor Komesar in effect updates the Legal Process approach by recognizing more fully the imperfections of government action. Komesar offers a framework for conducting serious comparative analyses of the strengths and weaknesses of politics (i.e., the legislative and executive branches), the courts, and the free market. Reviewed in Edward L. Rubin, Institutional Analysis and the New Legal Process, 1995 Wis. L. Rev. 463. For another good treatment, see Charles Wolf, Jr., Markets or Governments: Choosing Between Imperfect Alternatives (2d ed. 1993).

Clarence Thomas, Victims and Heroes in the Benevolent State, 19 Harv. J.L. & Pub. Pol’y 671 (1996). This address offers an intellectual history of the current preoccupation with “group rights” and “victim status.” According to Justice Thomas, the rise of “radical egalitarianism” and the “ideal of the benevolent state” are responsible for our culture’s failure to appreciate the power of the individual human spirit to overcome injustice, adversity, and misfortune without the need of government intervention or special entitlements. This address identifies trends that clearly are present in the law, and it is therefore a worthwhile guidepost for law students assessing the impact of our legal institutions on civil society. Indeed, Justice Thomas calls upon the legal profession to “pare back the victimology that pervades our law, and thereby encourage a new generation of heroes to flourish.” The address was part of a Federalist Society symposium on Group Rights, Victim Status, and the Law, 19 Harv. J.L. & Pub. Pol’y 645 (1996).

Alex Kozinski, The Dark Lessons of Utopia, 58 U. Chi. L. Rev. 575 (1991). An interesting meditation on the collapse of the former Soviet empire and its meaning for those of us in the West with respect to our own governments. Judge Kozinski, a Romanian emigre, notes the dark irony of the fact that “Even as peoples of Eastern Europe strive to establish free market economies, implement private property rights, and diminish the role of government, the United States continues on a path headed in the opposite direction.” See also Alex Kozinski & David M. Schizer, Echoes of Tomorrow: The Road to Serfdom Revisited, 23 Sw. U.L. Rev. 429 (1994) (part of a symposium on F.A. Hayek and Contemporary Legal Thought, on the occasion of the fiftieth anniversary of the publication of Hayek’s The Road to Serfdom (1944), with other principal papers by Robert Cooter, Bernard Siegan, Leonard Liggio, and Bruce Johnson).

Mancur Olson, Dictatorship, Democracy, and Development, 87 Am. Pol. Sci. Rev. 567 (1993). A very entertaining demonstration of the author’s claim that the same conditions necessary for a lasting democracy are the same necessary for the security of property and contract rights that generate economic growth.

Internet resources: There is much legal history on the web. The American Society for Legal History maintains a large site,  Have any doubts as to the relationship between economic freedom and growth, or between economic freedom and political freedom? For ample empirical verification of your gut instincts on this question, see Bryan T. Johnson, Kim R. Holmes & Melanie Kirkpatrick, The Heritage Foundation’s Index of Economic Freedom

Law and Economics

Paul H. Rubin, Why Is the Common Law Efficient?, 6 J. Legal Stud. 51 (1977). An early attempt to explain why and how the common-law system abandons “inefficient” legal rules.

Richard A. Posner, Economic Analysis of Law (5th ed. 1998). Judge Posner’s treatise is an encyclopedic overview of the law and economics literature. It includes chapters on most areas of the law. In addition, his chapters on “The Common Law, Legal History, and Jurisprudence” and “The Choice Between Regulation and Common Law” are quite provocative.

Henry Hazlitt, Economics in One Lesson (1946); James D. Gwartney & Richard L. Stroup, What Everyone Should Know About Economics and Prosperity (1993). Law students with little or no background in economics should not despair. The level of familiarity with economic principles necessary to understand the basics of the law and economics approach is easily within your reach. These are two good short treatments of the core ideas of economics that involve very little in the way of graphs and math. The Henry Hazlitt Foundation offers information and texts on-line at The Gwartney & Stroup book may be ordered from the James Madison Institute of Tallahassee, Florida,

A. Mitchell Polinsky, An Introduction to Law and Economics (2d ed. 1989). This short, readable text uses basic microeconomics to illustrate the core ideas of the property, contract, and tort law, and the legal system. It does not use any mathematics beyond simple arithmetic.

Robert Cooter & Thomas Ulen, Law and Economics (2d ed. 1997). A good textbook treatment of the economic approach to law.

Douglas Baird, Robert Gertner & Randal Picker, Game Theory and the Law (1994). The authors have expressed the hope that their text, which applies concepts from the branch of economics concerned with the strategic interaction of noncooperative parties, will usher in a “second generation” of law and economics scholarship. Only time will tell. For a brief look at their analysis, see Randall Picker, Law and Economics: Intellectual Arbitrage, 27 Loy. L.A. L. Rev. 127 (1993). Students interested in game theory can consult numerous web sites devoted to the subject. For starters, we suggest “Al Roth’s Game Theory and Experimental Economics Page,” and “Prisoners’ Dilemma,”

Jonathan R. Macey, The Pervasive Influence of Economic Analysis on Legal Decisionmaking, 17 Harv. J.L. & Pub. Pol’y 107 (1994). Attempts to explain why law and economics seems to have “had little effect on the methodology by which cases are decided.” Argues that traditional legal analysis “provides a more efficient method for deciding cases than does modern economic analysis” and that in any event “traditional legal analysis in many areas of the law is not appreciably different from economic reasoning,” although the rhetoric is different.

Robert C. Ellickson, A Critique of Economic and Sociological Theories of Social Control, 16 J. Legal Stud. 67 (1987). Ellickson criticizes the “law and economics” and the “law and society” movements. He argues that the former tends to overestimate the importance of law and underappreciate the role that “nonlegal systems play in achieving the social order.” The latter tends to commit the converse error, and has not contributed much to our understanding of the content of nonlegal “norms.” For another of Ellickson’s critiques, see his Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 Chi.-Kent L. Rev. 23 (1989). In short, Ellickson would like to see law and economics scholars incorporate insights from psychology and sociology.

Michael E. DeBow, Markets, Government Intervention, and the Role of Information: An “Austrian School” Perspective, with an Application to Merger Regulation, 14 Geo. Mason U.L. Rev. 31 (1989). Offers a brief introduction to “Austrian economics,” contrasts it with Chicago School microeconomics, and suggests ways in which an Austrian attitude helps one evaluate regulatory policies. One of the precepts of the Austrian School is known as “methodological individualism,” the idea that the individual and his or her actions are the only basis for economic analysis. This idea is rather seriously at odds with the familiar invocation of “social welfare” by many social scientists. For a very clearheaded discussion of the implications of methodological individualism for law and economics scholarship, see Gary Lawson, Efficiency and Individualism, 42 Duke L.J. 53 (1992).

Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms, 64 U. Chi. L. Rev. 1225 (1997). An interesting exercise into how norms affect behavior using computer modeling. Professor Picker examines how competing norms interact and finds that sometimes the two norms co-exist, whereas in other instances, one norm drives out the other.  He concludes that the policy lesson to be learned is that large norm-intervention is inefficient, but that small-scale norm perturbation is appropriate to reach the efficient result.

Internet resources: The FindLaw Law & Economics page contains a wealth of information on this subdiscipline, including a link to the “Encyclopedia of Law and Economics,” a large reference site under construction. On his home page economist-law professor David Friedman offers web versions of his writings and other useful information for students,

Students interested in learning about economics more broadly can avail themselves of a wealth of information on-line. For starters, consult “Capitalism: Frequently Asked Questions,” Other user-friendly sites particularly useful for beginning students of economics include “Amos Web,” and the edited “Your Mining Co. Guide to Economics,” For the complete listing of the Austrian School of economic analysis, see the listing maintained at the Mises Institute web site, Another good site is the “History of Economic Thought” found at For an HTML version of Adam Smith’s “The Wealth of Nations,” check

Public Choice

William C. Mitchell & Randy T. Simmons, Beyond Politics: Markets, Welfare, and the Future of Bureaucracy (1994). A good introduction to public choice theory, i.e., the application of economic reasoning to political and governmental institutions. Mitchell and Simmons do a particularly good job explaining “government failure” (as opposed to the “market failure” justifications for government intervention).

Richard A. Epstein, Bargaining with the State (1993). Explores the problems raised when the state attempts to regulate behavior by attaching conditions to government spending programs, government contracts, and the like, particularly where the government could not constitutionally require the behavior it is, in effect, bargaining for. Epstein develops an expansive view of the “unconstitutional conditions” doctrine that would limit the federal government’s ability to engage in such horse-trading with its citizens.

James D. Gwartney & Richard L. Stroup, Economics: Private & Public Choice (6th ed. 1992). This widely-used introductory text displays more of an affinity for markets and more skepticism toward government processes than most economics textbooks.

David Friedman, Price Theory: An Intermediate Text (2nd ed. 1990). This text, written for upper-level economics undergraduates, is quite good and is also considerably more fun to read than its competitors. It also embodies a strong preference for the marketplace over the political/governmental arena..

Richard E. Wagner, To Promote the General Welfare: Market Processes vs. Political Transfers (1989). A thorough discussion of how government policies towards the poor often have unforeseen and unwanted effects. Gary S. Becker, Competition and Democracy, 1 J. L. & Econ. 105 (1958). This early contribution to the economic analysis of politics by a Nobel prize-winning economist considers the similarities between and differences in political and economic processes.

Dwight Lee, Politics, Ideology, and the Power of Public Choice, 74 Va. L. Rev. 191 (1988). A defense of public choice theory against common criticisms. This article appears in a Symposium on Public Choice that also includes papers by public choice adherents Geoffrey Brennan and James Buchanan (the 1986 Nobel laureate in economics), Robert Tollison, William Riker and Barry Weingast, and Jonathan Macey, as well as articles critical of the use of public choice theory in debates about law.

Symposium on Public Choice and the Judiciary, 1990 B.Y.U. L. Rev. 729 (1990). An introductory essay by William Mitchell and Randy Simmons contains a brief history of the public choice movement. Peter Aranson’s contribution is largely optimistic about the explanatory power of public choice in assessing judicial behavior, while Richard Epstein’s contribution is largely skeptical about the theory when applied to the judiciary.

Paul H. Rubin & Martin J. Bailey, The Role of Lawyers in Changing the Law, 23 J. Legal Stud. 807 (1994). Treats lawyers as an interest group active in legal change, paying particular attention to the history and structure of the American Trial Lawyers Association. Finds evidence that lawyers have benefited from increased uncertainty in products liability law. More broadly, the authors conclude that “Rent seeking by lawyers seems to take the form of undermining those legal institutions that provide stability and clear rights for citizens. In particular, rent seeking by lawyers seems to undermine the foundations of free contract.”

Internet resources: Professor Patrick Gunning has made selective chapters of his survey text, “Understanding Democracy: An Introduction to Public Choice,” available on-line at For a good introduction to the field of public choice, see the Center for Study of Public Choice housed at the James Buchanan Center for Political Economy at

Issues in Legal Studies

Richard Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 Harv. L. Rev. 761 (1987). In this article, Judge Posner asks whether law is really a separate field of inquiry, or whether it is better viewed as a vector of a number of social forces which can best be studied using the tools of various social sciences, including economics. The article also offers an interesting history of American law and the legal profession since the early 1960s. Two chapters in Richard Posner, Economic Analysis of Law are particularly relevant here as well: chapter 19 (“The Market, the Adversary System, and the Legislative Process as Methods of Resource Allocation”) and chapter 20 (“The Process of Legal Rulemaking”).

Emerson H. Tiller and Frank B. Cross, What is Legal Doctrine?, 100 Nw. U.L. Rev. 517 (2006).  A timely call for greater attention to legal doctrine by lawyers and social scientists alike.  The professors argue that more attention to the core elements of legal analysis will advance research and create additional quantitative research dimensions that will increase inter-disciplinary knowledge.

Last updated April 2011

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