Public Choice Revisited

Although not the first book on public choice_ for a legal audience, Max Stearns’s Public Choice and Public Law is the first full-scale textbook for law school use. An ambitious undertaking by a rising young scholar, the book provides law students with a comprehensive introduction to public choice. Public choice – essentially, the application of economic reasoning to political institutions – has become a significant aspect of public law scholarship. Indeed, in his Foreword, Saul Levmore hails public choice as “[t]he most exciting intellectual development in law schools in the last decade” (p. xi). Be that as it may, the publication of the first textbook surely marks an important stage in the development of a subject. It is an apt occasion to evaluate the ways in which public choice can best contribute to legal education and scholarship. Our goal in this review, consequently, is not merely to assess the Stearns book, but to see what light it sheds on this broader question. In Part I of the review, we accompany Steams on a tour of public choice and public law. The book provides a good cross section of the major writings of legal scholars interested in public choice. For readers familiar with the field, Part I provides an opportunity to examine Stearns’s organization and choice of readings. For others, it provides a primer on the topic. Building on Stearns’s materials in Part II, we offer some thoughts about how public choice can best inform legal scholarship. A similar debate about the utility of public choice has been raging in political science, and we believe that this debate has generated some useful insights about the possible contributions of public choice to understanding legal issues. Indeed, some of the leading public choice scholars in political science have now revamped their claims for the theory as a result of this debate. Legal academics such as Stearns have not yet had time to absorb these developments and thus may be asking more from public choice theory than its best practitioners believe it can realistically offer. Finally, in Part III, we consider how public choice can contribute to the education of law students. One of the questions raised in Levmore’s Foreword is the extent to which public choice should be integrated into existing courses, as opposed to receiving a separate place in the curriculum (pp. xiv-xv). Our own view, unlike Levmore’s, is that public choice is likely to be most useful when integrated into existing courses, but that materials like Stearns’s can serve a beneficial function for more advanced students.