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The Political Economy of Law: Decision-Making by Judicial, Legislative, Executive and Administrative Agencies

  • Mat McCubbins

    (University of California, San Diego)

  • Roger Noll

    (Stanford University)

  • Barry Weingast

    (Stanford University)

In the 1980s scholars began applying Positive Political Theory (PPT) to study public law. This chapter summarizes that body of research and its relationship to other schools of legal thought. Like Law and Economics, PPT of Law uses sequential game theory to examine how rules and procedures shape policy and evaluates these outcomes from the perspective of economic efficiency. Like the Legal Process School in traditional legal scholarship, PPT of Law focuses on how the structure and process of legislative, bureaucratic and judicial decision-making influences the law and evaluates these procedures using the principle of democratic legitimacy; however, rather than using procedural norms derived from moral and political philosophy to evaluate procedures, PPT of Law conceptualizes the decision-making procedures of government as rationally designed by elected officials to shape the policies arising from decisions by executive agencies, the courts, and future elected officials. After summarizing this theory, the essay turns to applications of this approach in administrative law and statutory interpretation.

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Paper provided by Stanford Institute for Economic Policy Research in its series Discussion Papers with number 04-035.

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Date of creation: Aug 2005
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Handle: RePEc:sip:dpaper:04-035
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  1. Rodriguez, Daniel B., 1992. "Statutory interpretation and political advantage," International Review of Law and Economics, Elsevier, vol. 12(2), pages 217-231, June.
  2. Richard A. Posner, 1974. "Theories of Economic Regulation," Bell Journal of Economics, The RAND Corporation, vol. 5(2), pages 335-358, Autumn.
  3. Nolan M. McCarty, 1997. "Presidential Reputation and the Veto," Economics and Politics, Wiley Blackwell, vol. 9(1), pages 1-26, 03.
  4. Mashaw, Jerry L, 1985. "Prodelegation: Why Administrators Should Make Political Decisions," Journal of Law, Economics and Organization, Oxford University Press, vol. 1(1), pages 81-100, Spring.
  5. Schwartz, Edward P, 1992. "Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-Making," Journal of Law, Economics and Organization, Oxford University Press, vol. 8(2), pages 219-52, April.
  6. Lohmann, Susanne & O'Halloran, Sharyn, 1994. "Divided government and U.S. trade policy: theory and evidence," International Organization, Cambridge University Press, vol. 48(04), pages 595-632, September.
  7. Noll, Roger G., . "Breaking Out of the Regulatory Dilemma: Alternatives to the Sterile Choice," Working Papers 108, California Institute of Technology, Division of the Humanities and Social Sciences.
  8. Thomas Romer & Howard Rosenthal, 1978. "Political resource allocation, controlled agendas, and the status quo," Public Choice, Springer, vol. 33(4), pages 27-43, December.
  9. McCubbins, Mathew D & Noll, Roger G & Weingast, Barry R, 1987. "Administrative Procedures as Instruments of Political Control," Journal of Law, Economics and Organization, Oxford University Press, vol. 3(2), pages 243-77, Fall.
  10. Weingast, Barry R & Shepsle, Kenneth A & Johnsen, Christopher, 1981. "The Political Economy of Benefits and Costs: A Neoclassical Approach to Distributive Politics," Journal of Political Economy, University of Chicago Press, vol. 89(4), pages 642-64, August.
  11. Weingast, Barry R & Marshall, William J, 1988. "The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets," Journal of Political Economy, University of Chicago Press, vol. 96(1), pages 132-63, February.
  12. Rasmusen, Eric & Ramseyer, J Mark, 1994. " Cheap Bribes and the Corruption Ban: A Coordination Game among Rational Legislators," Public Choice, Springer, vol. 78(3-4), pages 305-27, March.
  13. McKelvey, Richard D., 1976. "Intransitivities in multidimensional voting models and some implications for agenda control," Journal of Economic Theory, Elsevier, vol. 12(3), pages 472-482, June.
  14. Kenneth Shepsle & Barry Weingast, 1981. "Structure-induced equilibrium and legislative choice," Public Choice, Springer, vol. 37(3), pages 503-519, January.
  15. Noll, R.G. & Krier, J.E., 1989. "Some Implications Of Cognitive Psychology For Risk Regulation," Papers 149, Stanford - Studies in Industry Economics.
  16. Spiller, Pablo T., 1992. "Rationality, decision rules, and collegial courts," International Review of Law and Economics, Elsevier, vol. 12(2), pages 186-190, June.
  17. Noll, Roger., 1983. "The Political Foundations of Regulatory Policy," Working Papers 486, California Institute of Technology, Division of the Humanities and Social Sciences.
  18. Spiller, Pablo T & Spitzer, Matthew L, 1992. "Judicial Choice of Legal Doctrines," Journal of Law, Economics and Organization, Oxford University Press, vol. 8(1), pages 8-46, March.
  19. Matthews, Steven A, 1989. "Veto Threats: Rhetoric in a Bargaining Game," The Quarterly Journal of Economics, MIT Press, vol. 104(2), pages 347-69, May.
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