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Jacobi, Tonja --- "The Judiciary" [2010] ELECD 314; in Farber, A. Daniel; O’Connell, Joseph Anne (eds), "Research Handbook on Public Choice and Public Law" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on Public Choice and Public Law

Editor(s): Farber, A. Daniel; O’Connell, Joseph Anne

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206749

Section: Chapter 7

Section Title: The Judiciary

Author(s): Jacobi, Tonja

Number of pages: 27

Extract:

7 The judiciary
Tonja Jacobi


Public choice has increasingly been applied to the judiciary in recent years, because it has
proved to be useful as both a predictive and explicative tool. At heart, public choice is a
mechanism of tracing the effects of institutional structures and constraints. As such, it
aids both ex ante analysis ­ answering such questions as `what do the various theories of
judicial behavior predict?' (see for example, Jacobi 2009, discussed below) ­ and post hoc
analysis ­ helping to explain such puzzles as `why do we see extremist judicial appoint-
ments on the Supreme Court?' (see for example, Bailey and Chang 2001).1
The term `public choice' encompasses both `rational choice' and `social choice.'
Rational choice is a system of logic premised on assumptions about how individuals
maximize utility in a self-interested way; social choice applies similar logic to the associ-
ated puzzle of the extent to which systems of aggregating the preferences of individuals
are themselves rational. Both of these modes of analysis have been applied in relation to
the judiciary, but there is still considerable room for advantageous application of each,
particularly social choice.
In relation to the judiciary, rational choice has been more broadly and deeply devel-
oped than social choice. It has been applied to questions of both how judges make
various types of decisions and how other actors make decisions that directly impact the
judiciary ­ how the president and Senate make nominations and confirmations, what
shapes litigant incentives, and how bureaucratic agencies ...