Public Choice Theory and the Fragmented Web of the Contemporary Administrative State

Since World War II, public choice theory – defined broadly as the application of the assumptions and methodology of microeconomics to describe or predict the way public officials exercise power – has grown from a fledgling movement, gaining mainstream acceptance and respect for its insights into voting behavior, judicial decisionmaking, and other public actions. Although a theory first explored by economists and political scientists, public choice’s normative insights have earned credibility in recent years in academic legal literature. Public choice’s acceptance in the law school curriculum is demonstrated by the recent publication of course material on the topic. However, despite public choice’s self-proclaimed positive nature – as a descriptive and predictive tool – it continues to have its share of vigorous opponents, who “angrily reject its pessimistic model of human behavior, and suspect its analysis of being driven by an underlying dislike of regulation and redistribution.” Theories of administrative law have also been the subject of much discussion in the legal literature over the past half-century. Many contemporary scholars have attempted to weave administrative law statutes and cases into overarching theories of bureaucracy. At the same time both bureaucracy and administrative law have had a fair number of vigorous critics, some rejecting delegation as inherently antidemocratic, others condemning the actions of bureaucrats as without common sense, still others decrying theories of bureaucracy as incoherent and illegitimate or the administrative state as unconstitutional.