Vanderbilt Law Review

First Page



By many yardsticks, public choice is the single most successful transplant from the world of economics to legal scholarship., As with other law-and-economics scholarship, critics have attacked its assumptions, its methodology, and its conclusions. But nearly everyone concedes the power of at least some of the insights of public choice, and many of its terms, including "public choice" itself, have become common coinage in the legal literature, even among those who would never overtly rely on law-and-economics perspectives in their work.

Although both Maxwell Stearns's collection of readings and commentary, Public Choice and Public Law, and much of this Review focus principally on public choice in the legal literature, it is useful to begin with a brief description of the emergence of public choice outside of law. The antecedents of public choice date back over two centuries, but the modern public choice literature is usually traced to pathbreaking work by Duncan Black in 1948 and Kenneth Arrow in 1951. Black's work, together with that of several other theorists," suggested that interest groups will exercise disproportionate influence over the political process. Arrow's work on collective decisionmaking underscored the difficulty of ensuring both fairness and rationality in legislative decisionmaking.

Public choice emerged at a time when, although recognizing the influence of interest groups, many leading political theorists assumed that pluralism-often defined as vigorous competition among a variety of interests-would lead to legislation that generally furthered the public good. If nothing else, public choice cast cold water on this perspective and offered a much more sober view of the political process.